KRISTA KISHORE BOSE Vs. PANCHARAM MAITY

JUDGEMENT

(1.) This is a point of practice. It appears that there was a maortgage suit which was decreed ex parte on 25 November 1925. The defendant who is the applicant before us to-day brought his application under Order 9, Rule 13, Civil P.C. on 5 January 1927 to have that ex- parte decree set aside and the suit restored for hearing. That application having been filed and registered on 12 February it appears from the order sheet the case was adjourned to 5th March 1927. In the meantime a petition supported; by an affidavit was made by the defendant asking for his examination on commission, but in the end the case was adjourned to 26th March for hearing and again to 30 April and the present applicant filed a petition with a medical certificate and again prayed for his examination on commission on the ground of illness. This time the application was granted on the term that the execution of the commission would not be a ground for any further adjournment and the parties were directed to come ready on the day fixed The commissioner finished his work on 30 April 1927, and on that day it was ordered on both parties prayer for time let the case be adjourned to 7 May 1927 for hearing. Parties must come ready on that day.

(2.) On the day in question 7 May 1927 the position was this that the evidence taken on commission was recorded in the report, but the pleader who had been appearing for the defendant said that he had no instructions. Thereupon the learned Judge treated the matter as a case of default. He said: The applicant does not appear on calls. His pleader states that he has no instructions in the case to-day. The opposite party is present. Let the case be dismissed for default with costs Rs. 8.

(3.) Now, the learned advocate for the petitioner contends before us that that course was improper and that what should have been done was this that evidence taken on commission together with any other evidence which the plaintiff might adduce should have been considered and1 the case should have been decided on its merits though in the absence of the defendant. That question turns upon two other questions the first is whether or not the case before us in the events which happened was governed by Rule 2, Order 17 of the Code or by Rule 3. On that question it seems to me that the case is within Rule 2. It is quite true that in the order as recorded it appears that the adjournment was made on the application of both parties. It is quite true that there is that notice that parties would get no further adjournment in the words parties must come ready on that day. Still I do not think that j that is what is contemplated by the terms of Rule 3. Rule 2 begins by: where on any day to which the hearing of the-suit is adjourned (it does not say at whose instance it is adjourned) the parties or any of them fail to appear: