CHET RAM Vs. LACHHU ETC.

JUDGEMENT

(1.) This revision petition under Sec. 115 of the Civil Procedure Code is directed against an order of the learned District Judge, Simla declining to review an earlier order dismissing an appeal.

(2.) In a suit for cancellation of a sale one Smt. Thainya applied under Order 39 rules 1 and 2 for an injunction restraining the vendee from proceeding with a suit for redemption filed by him. The trial court granted an ex parte injunction. The vendee, who is the first Respondent before me applied for vacating the ex parte injunction. While this application was pending Smt. Thainya died and substitution proceedings were initiated by her legal representatives. The substitution application was still pending when on August 2, 1972, the trial court allowed the application of the first Respondent and vacated the ex parte injunction. Against that order the legal representatives appealed. The appeal came on before the learned District Judge on September 20, 1973, and he made the following order:

(3.) Two contentions have been raised by learned Counsel for the Petitioner. The first is that the learned District Judge misconstrued the factual position when he made the order dated September 20, 1973. It is pointed out that the case was fixed for appearance of the Respondents and if on that date the Appellants could not appear the appellate court did not have jurisdiction to dismiss the appeal in default. It is urged that this constituted an error apparent on the face of the record and the learned District Judge should have treated it as such. I have perused the order sheet of the lower appellate court. The appeal was admitted on August 2, 1972, and notice was issued to the Respondents for September 14, 1972. On the latter date the case was adjourned as the Presiding Officer was on leave and a fresh date was fixed. Notice was not served on the Respondents and again fresh notice was issued. This went on until June 27, 1973, when the appellate court made an order to the following effect: