GOPI LOHAR Vs. MAHESHWAR PRASAD NARAIN SINGH

JUDGEMENT

(1.) This is an application framed as under Order 41, Rule 21, Civil P.C., to restore to the file for re-hearing an appeal which was heard and decided ex parte.

(2.) The petitioners were the defendants in the original suit and were respondents in the appeal to this Court. The suit had been dismissed by the Courts below and the second appeal was dismissed by this Court. It is therefore objected that an application for re-hearing under Order 41, Rule 21 does not lie and should not be entertained. The provisions of Order 41, Rule 21 correspond to those of Order 9, Rule 13 to which I may refer by way of comparison. An application under Order 9, Rule 13 will lie "in any case in which a decree is passed ex parte against a defendant," and it seems perfectly clear that an application for re-hearing of a suit will only lie at the instance of the defendant if a decree has been passed against him. The wording of Order 41, Rule 21 is not identical. This rule provides that: Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the appellate Court to re-hear the appeal.

(3.) The applicants notwithstanding that the appeal against them was dismissed, seek to obtain the benefit of this rule as being persons against whom judgment was pronounced because of some observations made in the course of the judgment by which the appeal was decided. I should here explain that the claim of the plaintiffs in suit was to eject the defendants from a holding which the latter had purchased from a tenant who held it under the plaintiffs.