SARJU PRASAD Vs. GAJADHAR LAL

JUDGEMENT

(1.) This appeal arises cut of a suit brought by the plaintiffs for a declaration that they were not bound by a decree obtained collusively by the, defendants, Gajadhar Lal and others, against Musammat Puna, the widow of Mangli, and that a sale held in execution of that decree did not effect anything more than the life- interest of the said lady.

(2.) The 4 of August 1919 was fixed for the hearing of the suit. On that date a the defendant, Gajadhar Lal, applied for an adjournment on the ground that he had summoned his witnesses, but they had not been served. The Court in which the suit was pending granted the adjournment and fixed the 21 August 1919 for its hearing. On that date the plaintiffs were present and the evidence adduced by them was recorded. The contesting defendant, Gajadhar Lal, was not present. His Pleader stated that his client had not turned up till then, that the witnesses summoned by him were also not present; and that he did not know what had happened to prevent them from attending. He expressed his inability in (sic) sequence to proceed with the hearing. On that date a telegram had been received by the, Court from Gajadhar (sic) purporting to have been sent from the Railway, Station Manhar, on the 21 August 1919 at 11-40 a.m., stating that he had missed the train and was lying at Bindki Road with the witnesses and asking that the hearing of the case might be postponed. He had, as a matter fact, summoned eight witnesses on the 13 August 1919 for the date fixed for the hearing; and if his allegation was correct that the witnesses were coming with him by train and had been detained on account of his missing connection at Bindki Road, his absence on the date fixed could have been explicable. The Court, however, proceeded under Order. XVII, Rule 3 to try the suit on the merits and decreed it with costs.

(3.) An application was subsequently filed by the said defendant, accompanied by an affidavit, for the setting aside of what he described as an ex parte decree, but it was rejected by the Court on the ground that no such application was maintainable. He then filed an appeal from the order rejecting that application and another appeal from the original decree decreeing the suit. The former appeal was dismissed by the learned Subordinate Judge 011 the 10 April 1921. The latter, though filed beyond time, was admitted by him under section 5 of the limitation Act (IX of 1908) and ultimately allowed. The order passed by him in the latter appeal merely declared that the Court of first instance had no power to decide the suit on the merits in the absence of the contesting defendant and that the decree passed by it was only &n ex pane decree.