Skip to content


(Chaudhari) Baldeo Singh Vs. Chhaju Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1931All703a
Appellant(Chaudhari) Baldeo Singh
RespondentChhaju Singh and ors.
Excerpt:
.....added by this court to order 17, rule 2, it is clear that the defendant cannot be deemed to have failed to appear inasmuch as he was represented by a pleader although the pleader was engaged only for the purposes of making an application. this he was not justified in doing, for it cannot be said that he had failed to appear, and when the learned judge of the trial court refused to grant that application, he came up in appeal as against that order. the learned judge of the lower appellate court is perfectly justified in saying that the defendant has misconceived his remedy and his proper remedy was to appeal against the order of 11th june 1928. he therefore refused to entertain the appeal which had been filed before him......of making an application. the order of 11th june 1928 must therefore be construed to be an order on the merits and therefore a decree against which an appeal lay. the defendant instead of filing an appeal as against the said decree applied to the court for the restoration of the case interpreting the order as an ex parte order. this he was not justified in doing, for it cannot be said that he had failed to appear, and when the learned judge of the trial court refused to grant that application, he came up in appeal as against that order. the learned judge of the lower appellate court is perfectly justified in saying that the defendant has misconceived his remedy and his proper remedy was to appeal against the order of 11th june 1928. he therefore refused to entertain the appeal which had.....
Judgment:

Bajpai, J.

1. It appears that on 11th June 1928, which was an adjourned date of hearing, the defendant was not personally present, but a pleader appeared on his behalf who applied for a further postponement of the case. This application was refused, upon which he retired inasmuch as he had no further instructions to proceed with the case. The Court then after having stated the facts of the case said: 'The defendants are absent, claim proved. Suit is there-fore decreed ex parte with costs'. Having regard to the explanation added by this Court to Order 17, Rule 2, it is clear that the defendant cannot be deemed to have failed to appear inasmuch as he was represented by a pleader although the pleader was engaged only for the purposes of making an application. The order of 11th June 1928 must therefore be construed to be an order on the merits and therefore a decree against which an appeal lay. The defendant instead of filing an appeal as against the said decree applied to the Court for the restoration of the case interpreting the order as an ex parte order. This he was not justified in doing, for it cannot be said that he had failed to appear, and when the learned Judge of the trial Court refused to grant that application, he came up in appeal as against that order. The learned Judge of the lower appellate Court is perfectly justified in saying that the defendant has misconceived his remedy and his proper remedy was to appeal against the order of 11th June 1928. He therefore refused to entertain the appeal which had been filed before him. The revision as against the appellate order of the learned District Judge has therefore no force and we dismiss it with costs including in this Court-fees on the higher scale.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //