MOSAFIR MAHTON Vs. BACHANI

JUDGEMENT

(1.) This appeal is brought on behalf of the decree-holder against the order of the Additional Subordinate Judge, Chapra, dated the 28th September, 1959, by which the order of the Munsif of Chapra dated the 26th May, 1959, exempting an area of 17 kathas 16 dhurs of the land of the judgment-debtor under the provisions of Section 15 of the Bihar Money-Lenders Act, has been up-held.

(2.) The main point taken by the appellant is that the order of the lower appellate court dismissing the appeal on merits is ultra vires because the appellant did not appear in court on the date the appeal was called on for hearing, and under the provisions of Order XLI, rule 17 of the Code of Civil procedure the only course open to the appellate court was either to adjourn the case or to dismiss the appeal ex parte. In our opinion, the argument of learned counsel is well-founded and must be accepted as correct. Order XLI, Rule 17, Civil Procedure Code, -is to the following effect:

(3.) For these reasons, we hold that the judgment of the learned Additional Subordinate Judge of Chapra dated the 28th September, 1959, should be set aside and the appeal should now go back to him for re-hearing and for being dealt with in accordance with law. We accordingly allow this appeal and remand the case for re-hearing to the Additional Subordinate Judge, Chapra, There will be no order as to costs of this appeal in the High Court.