SATISH CHANDRA MUKERJEE Vs. AHARA PRASAD MUKERJEE

JUDGEMENT

(1.) This is an appeal against an order of the District Judge of Birbhum, passed on an application under Section 558 of the Civil Procedure Code for the re-admission of an appeal. The facts are that on the day fixed for the bearing of the appeal, viz., the 22 August, 1905, the appellant's pleader applied for time, and stated that he was unable to argue the appeal. Time was not allowed, and the appeal was dismissed. On the 15 November following, the appellant prayed for the re-admission of the appeal on the ground that he had been prevented by sufficient cause from prosecuting his appeal, but the learned Judge declined to go into the merits of the application, and considered himself bound by the ruling of this Court in the case of Watson & Co. V/s. Ambika Dasi (1899) 4 C.W.N. 237 to hold that Section 558 did not apply.

(2.) The appellant now appeals to this Court, and reliance is placed principally on the case of Cooke V/s. The Equitable Coal Company (1904) 8 C.W.N. 621, in which a contrary rule to that laid down in the case relied on by the District Judge has been enunciated.

(3.) The learned pleader, who appears on behalf of the appellant, has also cited the following cases in support of his contention that, when an application for adjournment is made and refused, and the case is then dismissed, the order of dismissal is one passed ex parte, and that, if the case is an appeal, the provisions of Section 558 of the Civil Procedure Code are applicable, viz.,Administrator-General of Bengal V/s. Dayaram Das (1871) 6 B.L.R. 688, Buldeo Misser V/s. Ahmed Hussain (1871) 5 W.R. 143, Ram Pertab V/s. Jakeeram Agurwalla (1896) I.L.R. 23 Calc. 991, Hinga Bibi V/s. Munna Bibi (1903) I.L.R. 31 Calc. 150, Palta Persad V/s. Nand Kishore (1899) I.L.R. 22 All. 66 and Soonder Lall V/s. Goorprasad (1898) I.L.R. 23 Bom. 414.