MADAN LAL Vs. GOBARDHAN DAS

JUDGEMENT

(1.) THE appellant in this Court is the judgment-debtor. His objections were considered by the Court of first instance which found generally against him. He appealed to the Court below. His appeal was filed on the 3 February 1908. Upon that day the 26 of May 1903 was fixed for hearing. On the date fixed for hearing the vakil informed the Court that he was unable to argue the case on behalf of the judgment-debtor appellant as no one had come to instruct him until that moment in Court. It is stated in the record of the proceedings that counsel for the respondents opposed any postponement of the case. THEreupon the lower appellate Court passed an order refusing to postpone the case and dismissing the appeal with costs. THE judgment-debtor comes here in second appeal to this Court. As to the first ground of appeal I agree with the Court below that under the circumstances the Court was justified in refusing to postpone the case. But it is contended, however, that as a pleader appeared on behalf of the appellant the Court was wrong in dismissing the appeal without going into the merits of the case. No section is quoted in the order of the lower appellate Court but it must be taken as an order passed under the provisions of Section 556 of the Code (XIV of 1882). THEre are conflicting opinions as to whether under such circumstances the presence of a pleader on behalf of the appellant is or is not an appearance such as is required by the provisions of the section. I have been referred to several rulings upon this point. This case is clearly distinguishable from the facts of the Full Bench case reported in Satish Chandra Mukerjee V/s. Ahara Prasad Mukerjee 34 C. 403 where the pleader who appeared on behalf of the appellant had been engaged solely for the purpose of applying for an adjournment of the case. THE pleader who appeared for the present appellant in the Court below did not withdraw from the case, He must be taken as still representing the appellant although he was not in a position to argue the case. Under the circumstances I think that the Court below ought to. have gone into the merits of the case and passed orders accordingly. I allow the appeal, set, aside the order of the Court below dismissing the judgment- debtor's appeal and direct that the Court below should proceed to deal with the appeal as it stood on the 26 May 1908. It will be in the discretion of the lower appellate Court to hear counsel for the appellant or not. THE appellant being to blame in this matter will pay the costs of the opposite party both in this Court and in the Court below.