E F SANDYS Vs. UPENDRA CHANDRA SINHA ROY

JUDGEMENT

(1.) This is an appeal against an order of the 25 February 1907 refusing to set aside an order of the 18 December 1905 under Section 108, C.P.C. It appears that on the 11th December 1905 it was ordered that a case should be taken up in which a preliminary decree for accounts had been made, and a Commissioner appointed to take accounts who made a report to the Court. It was ordered that the records which had been to the High Court having then come back the pleader should be informed that the 18 December next should be fixed for the hearing. It appears that "this order was brought to the notice of the senior pleader for the defendant who signed it. The case came on for hearing on the 18 and was decreed ex parte in the plaintiff's favour. The question is, whether the notice to the pleader in this case was notice to the defendant. The pleader appeared in Court on the application under appeal and swore that he did not inform his client of the order, and that as far as he knew it was not brought to his client's notice. It was only a week's notice, and looking at all the circumstances of the case we are of opinion that the presumption that notice to the pleader was good notice to the party has been rebutted by the facts proved on the record. The result of this is that the ex parte order of the 18 December was made without jurisdiction and that consequently the order of the 25 February 1907 bow under appeal is wrong.

(2.) The appeal is accordingly allowed, the order of the 25 February 1907 is set aside, and we direct that a new notice should be served on the defendant of the date to be fixed for the hearing of the case so that the final decree may be made in his presence.

(3.) A question has been raised before us as to whether the defendant ought to be put upon terms as to the payment of any sums of money. We consider on the whole that he ought not. It appears that there is in Court or in deposit with the opposite party a sum of money, which at all events is sufficient, to pay the amount which it is alleged that the defendant has promised to pay under the compromise alleged to have taken place in the suit. Under these circumstances we think that no terms are necessary.