NANDA KUMAR BARUA Vs. NABIN CHANDRA BARUA

JUDGEMENT

(1.) THIS appeal arises out of an application under Order XLI, Rule 19, of the Civil Procedure Code for re-admission of an appeal dismissed for default. A preliminary objection has been taken on behalf of the respondents that no appeal lies in this Court as the appeal was not dismissed under Order XLI, Rule 17. The whole question is, whether there was appearance of the appellant within the meaning of Order XLI, Rule 17, Civil Procedure Code. It appears that 13th of June 1910 was fixed for the hearing of the appeal. The appellant s Pleader was ill that day and did not appear in Court. The appellant happened to be present in Court and, on the case having been called on, he asked for time to get his Pleader. THIS was disallowed and the appeal was dismissed without hearing. Thereupon, on the 1st of July 1910, the appellant made an application under Order XLI, Rule 17, and that application was dismissed by the learned District Judge, on the ground that the appellant had appeared in the case and that the application, therefore, could not come within the scope of Order XLI, Rule 19. No doubt the appellant was present in Court. But he had engaged a Pleader to appear at the hearing and argue the appeal for him presumably because he himself could not do so. We are of opinion that the mere presence of the appellant in the Court-room on the day of hearing and his having asked the Court for time to get his Pleader did not constitute appearance of the appellant within the meaning of the Civil Procedure Code. The Court at once dismissed the appeal without any hearing and apparently acted under Order XLI, Rule 17. Under the circumstances, we think that the order of the lower Court dated the 1st of July 1910 should be set aside and the appeal re-admitted. But this must be upon the appellant depositing in the lower Appellate Court within one month of the arrival of the record in the said Court (if not already deposited by him) the costs he was directed to pay by the Judge on the 13th of June 1910. In default, the appeal will stand dismissed with costs. Costs of this appeal will abide the result, the hearing fee being assessed at two gold mohurs.

(2.) IT is not necessary to pass any order in the Rule.