JUDHISTIR SUBUDHI Vs. BALAJI FINANCIAL FUND

JUDGEMENT

(1.) THIS is an appeal under Order 431 Rule 1 (t) of the Code of Civil Procedure (hereinafter called the 'Code ') challenging the order of the Subordinate Judge, Bhanjanagar refusing to rehear the appeal on merits.

(2.) RESPONDENT No. 1 was the Appellant in Money Appeal No. 3/81 who had been unsuccessful in a suit brought by him against the Appellant and original Respondent No. 2. The appeal was once dismissed for default of the present Respondent No. 1 in the Court below. The appeal was restored in M. J. C. No. 43 of 1983 by the lower appellate Court pursuant to an application under Order 41, Rule 19 of the Code. After the restoration of the appeal it was posted to 19 -4 -1984 on which day the present Appellant and Respondent No. 2 who were Respondents in the Court below did not appear and the appeal was heard ex parte. The appeal was allowed by judgment dated 26 -2.1984 with costs and a decree was drawn up accordingly on 5.4 -1984, The present Appellant filed M. J. C. No. 24 of 1984 under Order 41, Rule 21, Civil Procedure Code praying for rehearing of the appeal on the ground that no notice was served on him either before or after restoration of the appeal and, therefore, he had no opportunity of contesting the appeal. The Subordinate Judge by the impugned judgment refused to rehear the appeal on the ground that notice on the present Appellant and Respondent No. 2 was not obligatory for which reason he found that there was no sufficient ground for the absence of the Respondent on the date fixed for hearing of the appeal.

(3.) MR . Kar, learned Counsel for the Respondent No. 1 contends that the present Appellant having been set ex parte earlier to the appeal being dismissed for default, he was not entitled to the notice, in the matter of restoration of the appeal or after the appeal was restored. He has further argued that the lower appellate Court has considered different aspects of the matter and his conclusion cannot, therefore, be interfered with in this appeal.