RAM BRIKSH SAO Vs. ASHARFI PANDIT

JUDGEMENT

(1.) Heard the learned Counsel appearing for the parties. This appeal is directed against the order dated 24.3.2002 passed by the Additional District Judge, Fast Track Court -III, Garhwa dismissing the petition filed by the plaintiffs -appellants under Order XLI, Rule 21 read with Section 151 of the Code of Civil Procedure for setting aside the ex parte decree and for re -hearing of the appeal.

(2.) THE admitted facts are that Title Suit No. 10 of 1969 filed by the plaintiff -appellants was decreed by the Court of Munsif Garhwa. Against the aforesaid judgment and decree, the respondents herein, who were the appellants, filed Title Appeal No. 43 of 1989. The appeal was heard ex parte and by judgment and decree, the appeal was allowed and the judgment and decree passed by the trial Court was set aside. The appellants thereafter filed an application under Order XLI, Rule 21 of the Code of Civil Procedure for setting aside the ex parte decree and for re -hearing of the appeal. It is pertinent to mention here that the said application was not registered as Misc. Case, rather the lower appellate Court proceeded to dispose of the said application in continuation of the order -sheets of Title Appeal No. 43 of 1989.

(3.) IT is well settled that in appeals, the parties are represented through counsels who undertake to appear at the time of hearing. Parties to the appeals are supposed to be represented through lawyers on the date of hearing of the appeals. It was the specific case of the appellants that the lawyer, who was representing them, was an old and infirm lawyer who could not appear on the date when the appeal was heard.