JODHA SINGH Vs. PADEY GOKARAN DAS

JUDGEMENT

(1.) This appeal raises a question of some importance and is accordingly laid before a Bench of two Judges.

(2.) Briefly the facts are these. A preliminary decree for sale was passed in favour of the appellant and one Dina Nath on the 31 of January 1911. The appellant purchased the share of Dina Nath in the decree and on the 2nd of January, 1914, well within three years of the passing of the preliminary decree, applied to the Court to pass a final decree. Notices were issued to the judgment-debtors and to Dina Nath who had been made an opposite party to the application and the case was adjourned from time to time. On the 17 of July, 1915, when the case was ripe, the appellant happened to be absent. The defendants never appeared. In the absence of the parties, the learned Subordinate Judge passed an order which, though ambiguous, has been treated as amounting to an order dismissing the suit for default. On the 28 of September, 1916 the appellant put in an application before the learned Subordinate Judge reciting all the previous history of the case and asking that his application dated the 2nd of January, 1914 might be revived and a final decree might be passed. He mentioned pointedly that the order of the 17 of July, 1915 was one which should not have been passed. The learned Subordinate Judge accepted the petition and passed by an ex-parte order a final decree for sale.

(3.) At the instance of some of the defendants the ex parte final decree was set aside and the previous application dated the 28 of September, 1916 was restored.