1. The circumstances of this case appear to be these: The plaintiff instituted a suit in the Court of the Subordinate Judge of Azamgarh, on the 24th June 1884, against the defendants, for establishment of his right to certain property which he alleged he had acquired by purchase in 1880, and for a declaration that such property was not liable to be sold in execution of the decree obtained by the defendant Gobind Prasad on the 29th September 1883, against the vendors of such property to the plaintiff. The suit, which was originally instituted in the Subordinate Judge's Court, was removed to the file of the Judge of Azamgarh for trial; and on the 15th November 1884, after settling the issues, the Judge made an order, professedly under Section 66 of the Code, for the attendance of the plaintiff in person at an adjourned hearing on the 4th December following, with certain documents he considered material for the decision of the subject-matters in dispute between the parties. On this last-mentioned date the case was called on before the Judge, and he proceeded to dispose of it in a manner to which I will presently advert. It appears, however, that prior to this the plaintiff had preferred an appeal to this Court against the order of the Judge of the 15th November 1884, already mentioned, and that appeal was heard by Oldfield and Mahmood, JJ., who set it aside on the 27th January 1885, Weekly Notes 1885, p. 143. The Judge, however, had meanwhile dismissed the suit for want of prosecution, on the ground that the plaintiff had failed to obey his order of the 15th November 1884; and this decision of his professes to have been passed under Sections 107 and 136 of the Procedure Code. Section 136 had nothing really to do with the matter; and this was pointed out by Mahmood, J., in his decision above referred to; and I think we must now take it that the suit was dismissed for non-appearance of the plaintiff, under Section 107 of the Code. It is provided in that section that if a plaintiff or defendant, who has been ordered to appear in person under the provisions of Section 66 or Section 436, does not appear in person or show sufficient cause to the satisfaction of the Court for failing so to appear, he shall be subject to all the provisions of the foregoing sections applicable to plaintiffs and defendants, respectively, who do not appear. The order dismissing the suit in this case has, therefore, the same effect as if it had been passed under Section 102 of the Code, and the plaintiff's remedy in such cases is indicated by Section 103 of the Code. The plaintiff was well aware of these provisions, for he did apply to the Judge of Azamgarh, under Section 103 of the Code read with Section 107, for an order to set the dismissal aside. The Judge refused that application, on grounds which are not before us, and with which we are not concerned in this appeal; but it is clear that the plaintiff might have, and ought to have, appealed to us against this last order of the Judge refusing to set aside the dismissal, under Section 588, Clause (8). This he has not done; on the contrary, he has preferred a first appeal as from a decree of the 4th December, which, in my opinion, he was not entitled to do.
2. It has been held by a Full Bench of this Court in the case of Lal Singh v. Kunjan I.L.R. 4 All. 387 that a defendant against whom a decree has been passed ex parte cannot appeal from such decree under the general provisions of Section 540, but must adopt the remedy provided in Section 108 of the Code.
3. For analogous reasons to those given by the majority of the Full Bench in that case, I hold that the plaintiff is not entitled to appeal from the decree of the 4th December 1884. He very properly applied, under Sections 103-107, to set aside the order of dismissal, and he ought, as I have before observed, to have appealed to us, under Section 538, Clause (8), against the order refusing that application. I may here remark that the propriety of this form of procedure is well illustrated by this case. Had the plaintiff followed it, all that we should have had to decide in his appeal from the order refusing to reinstate would have been as to the sufficiency or otherwise of the grounds made out by him for having the dismissal set aside. As it is, we are asked under the guise of an appeal from decree to determine not only that question but the merits of the case, which have, in fact, never been investigated or tried at all. The really crucial point is, whether the Judge had any right to do what he did under Sections 103-107 of the Code. Seeing that his order of the 15th November, for default in obedience to which he made his subsequent order of the 4th December, was set aside by this Court, it follows as a necessary consequence that had a proper appeal from his order of refusal to set aside the dismissal of the suit been made to this Court, it must have succeeded, with the result that the case would have then been replaced on his file and tried in the ordinary manner. This is precisely what, in my opinion, the law intended, and not that the matter should come up in the inconvenient form of an appeal from a decree. In this view the appeal must be, and hereby is, dismissed with costs.
4. I concur in the order proposed by my brother Straight.