1. This is an appeal from an order refusing an application to set aside an ex parte decree under Section 108 of the Civil Procedure Code. A preliminary objection has been made by the respondents' pleader, that although the Court below has dealt with the application under Section 180, there was in fact no ex parte decree in the case within the meaning of Sections 100 and 108, as the defendant appeared in the suit, and in consequence there was no jurisdiction to entertain the application under Section 108, and the remedy for the appellant was by appeal from the decree.
2. It appears that the first hearing of the suit was fixed for December 12th 1883, on which day the defendant did not appear, and the case was adjourned to the 18th December, and, as the defendant did not appear, a decree was made in favour of the plaintiff. A vakalat-nama, however, had been filed on the defendant's part previously, and the plaintiff had filed an application for the attachment of the defendant's property before judgment, to which the defendant had objected, and it is contended that these acts on the defendant's part amount to an appearance, so that the decree cannot be considered an ex parte decree, and the decision of the Privy Council in Zain-ul-abdin Khan v. Ahmad Raza Khan I.L.R. 2 All. 67 : L.R. 5 Ind. Ap. 233 is relied on.
3. That was a case decided under Act VIII of 1859, and all their Lordships decided was, that where the defendant had appeared on the day fixed for the first hearing, and had failed to appear at any date subsequent thereto to which the hearing of the suit may have been adjourned, he could not be held not to have appeared within the meaning of Section Ill of the Act, so as to make the hearing of the suit an ex-parte hearing, and the judgment an ex parte judgment within the meaning of Section 119.
4. They had not before them nor did they decide the question now before us whether, where the defendant had not appeared at the first hearing or at any subsequent day to which the hearing had been postponed, but had taken some steps for other purposes, the proceedings would cease to be ex parte. Indeed, their meaning seems to be otherwise, for they observe: 'Sections 109-111 taken by themselves clearly relate to the appearance of parties and to their non-appearance at the first hearing of the suit.' The latter section provides for disposal of the suit if the defendant does not appear, and placing on it the meaning placed by their Lordships, the inference is, that they meant to say that where the defendant does not appear at the first hearing, the proceedings will be taken ex parte. Further on they observe: 'Looking at all the sections together, their Lordships are of opinion that the words 'who has not appeared', as used in Section 111, mean who has not appeared at all, and do not apply to the case of a defendant who has once appeared, but who fails to appear on a day to which the cause has been adjourned.' The words 'who has not appeared at all' read with what immediately follows, and the other passage above quoted, seem to refer to appearance on the day fixed for hearing, or other day to which the hearing has been adjourned; that is, to a case where a defendant has not appeared at all on any day fixed for hearing, in answer to a summons to appear and answer the claim, and in that case the judgment will be ex parte, although the defendant may have appeared for other purposes.
5. In The Administrator-General of Bengal v. Dyaram Das 6 B.L.R. 688 where a defendant filed a written statement, and when the case was called on for final disposal, an application was made by counsel on his behalf for an adjournment, but the application was refused, and, no one appearing for him, the case was proceeded with and judgment obtained for the plaintiff, the decree was held to be ex parte. It was pointed out that under Act VIII of 1859 there is no appearance other than that referred to in Schedule (B) of that Act, which is either for the first hearing of the suit where the issues are to be fixed, or for the final disposal of the suit.
6. So in Bhimacharya v. Fakirappa 4 Bom. H.C. Rep. 206 it was held that the hearing of a suit in which a pleader was duly appointed on behalf of the defendant, but not instructed to answer or instructed not to answer at all, was an ex parte hearing. And it has been held that merely filing a vakalat-nama and when the case comes on not appearing in person or by pleader, is not an appearance--Bibee Haloo v. Atwaro 7 W.R. 81.
7. The appearance referred to in Section 100 of the present Code is, in my opinion: appearance in answer to a summons to appear and answer the claim on a day therein specified, issued under Section 64 of the Code. Section 100 is part of Chapter VII--'On the appearance of the parties, and consequence of non-appearance,' and refers, as is shown by Section 96 and other sections in this chapter, to their appearance or non-appearance on the day fixed in the summons for the defendant to appear and answer.
8. In this case, there has been no appearance of the defendant in answer to the summons to appear and answer the claim, and in consequence the hearing was ex parte under Section 100, and the objection on this score fails.
9. On the merits of this appeal, I am of opinion that the appellant has made out a case for setting aside the ex parte decree under Section 108. Her husband was the principal defendant, and the one who would have defended the suit; he died not long before the day fixed for the hearing; and the non-appearance of his widow is attributable to the position in which she was placed by his death, and her difficulty on a short notice to take the necessary steps to defend the suit.
10. The appeal is allowed, and the order of the lower Court and the decree are set aside. The case will be retried. Costs to follow the result.
11. I concur in the order proposed by my brother Oldfield, and I only wish to add that there having been no appearance of the defendant-appellant on the 12th December 1883, the case appears to have been adjourned by the Court suo motu to the 18th December, and that at the next hearing the Court seems to have acted under Section 157 of the Civil Procedure Code, which allows two alternative courses, the first of which is proceeding to dispose of the suit under Chapter VII of the Code, and the second, making such other order as the Court thinks fit. I am of opinion that the Court chose the first of these alternatives, and acted under Chapter VII, and passed an ex parte decree under the provisions of Section 100 of that chapter. My brother Oldfield has explained the ground upon which the decree should be considered as passed ex parte, and the application being made under Section 108, an appeal lay to this Court under Clause (9), Section 588, from the order rejecting the application to set the decree aside.