1. This is an application for the revision of an order of the Judge of the Small Cause Court of Dehra Dun under Section 25, Provincial Small Cause Courts Act. The circumstances, out of which it has arisen, which are not referred to in the order itself, must be detailed here. The plaintiff-applicant had filed a suit for a sum of money and 12th June 1931 was fixed by the Court for the final disposal. Before that date the defendant had applied for an alteration of the date on account of a marriage, but this application was rejected by the Court before the date of hearing, and on 12th June 1931 the defendant's vakil appeared and made an application for an adjournment on the ground that had been given in the previous application. In his application the vakil stated that he had no instructions not to proceed with the case and he had no instructions to apply for an adjournment. The result was that the Court gave a decree to the plaintiff which is not worded as an ex parte decree. An application was made in July 1931 to set aside what is referred to as the ex parte decree, but this did not come up for hearing till July 1932, when it was dismissed in default but subsequently restored on 13th February 1933. The result of all this was that the original application to set aside what was called the ex parte decree was before the Court for decision on the 20th May 1933 and the order passed by the Court was 'case restored on payment of costs, Rs. 10 costs fixed.' It has been pointed out by Dr. Yaish on behalf of the applicant that the decree was not an ex parte decree at all. Under the explanation to Rule 2, Order 17, Civil P.C.:
No party shall be deemed to have failed to appear if be is either present or is represented in Court by an agent or pleader, though engaged only for the purpose of making an application.
2. In the present case the vakil who made an application for adjournment had not been engaged only for that purpose. In fact he had not been engaged for that purpose at all but he did represent the defendant in the suit and he made appearance on that date in due course. It cannot be maintained that the decree was an ex parte decree and therefore it could not be set aside on a simple application as has been done by the trial Court by its order of 20th May 1933. It has however been objected that the applicant having accepted the costs which were directed to be paid to him by the defendant as a condition of the order, has waived his right of revision. The question of how far a party can be bound in circumstances like this, is not altogether an easy one to decide. Mr. Girdhari Lal Agarwala has pointed to the decision of the Madras High Court in the case of Narayanamurthi Somayajula v. Mohammad Azam Sahib (1928) 110 I.C. 528 for support to this argument that where a party can be shown to have accepted the costs under the order of the Court without making a statement to the effect that this acceptance is without prejudice, or that it is under protest, and that the right of appeal or revision or whatever it is, is reserved, that party must be held to be bound. The Madras High Court was following an English decision in the case of Tinkler v. Hilder 18 L.J. Ex. 429 in which this view has undoubtedly been taken. Dr. Vaish has quoted two cases: Sarat Kumari Dasi v. Amullyadhan Kundu, A.I.R. 1923 P.C. 13, and Mt. Qudrutunnissa Bibi v. Abdul Rashid, : AIR1926All661 , in which their Lordships of the Privy Council and a Bench of the Allahabad High Court have expressed views that may be interpreted as dissenting from the proposition stated in the case of Tinkler v. Hilder 18 L.J. Ex. 429, but the circumstances of those cases are not strictly analogous. It was also suggested that in the present case' the vakil who accepted the Rs. 10 costs could not bind his client but the power of attorney gives the counsel full power to compromise or withdraw the suit, and there can be no doubt that his act in accepting Rs. 10 would bind his client, if indeed that act constitutes a waiver.
3. It is not however necessary for me to decide the present application on the basis of these rulings. 'Under Section 25, Provincial Small Cause Courts Act, the High Court may call for a case for the purpose of satisfying itself that a decree or order made in any case has been decided by a Court according to law, and is not in any way bound by questions of waiver as between the parties. The order of the Court is clearly wrong, because it has set aside a decree which was not an ex parte decree by a summary order in which it has not even given consideration to the points that it would be necessary to determine in setting aside an ex parte decree. I feel therefore that I am bound to interfere for the reason that the order violates the rules of procedure laid down in Order 17, Civil P.C. It cannot be said that this has not caused a miscarriage of justice and that the High Court should therefore not interfere in revision; for there is nothing to show that the defendant, in failing to appear on the date fixed and their applying to set aside the decree, was not trying to force the hands of the Court by preventing a decision of the suit on the proper date. I therefore allow the application with costs, set aside the order of the Court dated 20th May 1933 and direct that the application to set aside the decree be dismissed with costs.