KHAIRUNNISA BEGUM Vs. MOTILAL

JUDGEMENT

(1.) When plaintiff Mst. Khairunnisa Begum proceeded to execute a decree for prompt dower, maintenance allowance etc. passed in her favour in the year 1960, an objection under Order 21 Rule 58 was raised by defendant Motilal in the execution proceedings to the effect that the house property that was attached for realisation of the decretal amount did not belong to him and was not liable to such attachment. The objection was upheld by the executing Court. It was in the said circumstances that the plaintiff brought a suit against the defendant under Order 21 Rule 63 of the Code of Civil Procedure on 4-12-1972. The said suit remained pending in the Court of Additional District Judge for eleven years. On 20-1-1973 which was the date fixed for recording of evidence of the parties there was non-appearance by the plaintiff and the suit was dismissed in default by the Court. The plaintiff, on 22-2-1973, made an application to the Court Under Order 9 Rule 9 of the Code to have the dismissal set aside. The Court, vide its order dated 28-10-1976, dismissed the said application. Being aggrieved, the plaintiff has filed the present miscellaneous appeal under Order 43 Rule I of the Code in this Court.

(2.) It was admitted position that the plaintiff and her counsel Shri Deopujari resided at Balaghat and were required to go to Bilaspur to attend the hearings of the suit from which the present miscellaneous appeal arises. It was also an admitted position that Shri Tamaskar of Bilaspur was the local counsel engaged by the plaintiff for the suit and as neither the plaintiff nor Shri Deopujari turned up in the Court at Bilaspur on 20-1-1973 lie reported no instructions in the matter.

(3.) Now, in support of the application made by her, the plaintiff examined Dr. Joshi of Balaghat who stated in his evidence that the plaintiff was suffering from torticollis (still-neck) and was under his treatment in connection with the said suffering from 15-1-1973 to 25-1-1973. It was also stated by the said witness that he advised Ex. P/1 granted by him to the plaintiff in the above connection on 12-2-1973. Another witness examined by the plaintiffs in support of the application made by her was Shri Deopujari that it was because he missed the relevant train for Bilaspur that he could not reach Bilaspur in time and remained present when the suit was called on for hearing.