1. This is an application praying that the order passed by this Courton the 16th April, 1909, which was passed ex parte may be set aside and the matter re-heard. Objections have been taken and the argument is that Order 9, Rule 13, is not applicable to proceedings of this kind. Certain rulings were cited to us in support of this contention, but both the rulings cited were before the present Code came into force. Moreover, we do not understand these rulings as laying down that Section 647, which was the corresponding section in the previous Code, related only to original matters in the nature of suits, such as proceedings in probates, guardianship and so forth. The words used by their Lordships of the Privy Council in Thakur Prasad v. Fakir-ul-lah 17 A. 106 : 22 I.A. 44 are carefully chosen. They say that the proceedings spoken of in Section 647 include original matters in the nature of suits, such as proceedings in probates, guardianships and so forth, thereby denoting that original matters mentioned were not the only matters to which Section 647 had reference.
2. The absence of any one on. behalf of Gobindgir when the case was called on for hearing in this Court has been satisfactorily explained. We accordingly set aside the order of the 16th April 1909, and direct that the application of Khushalgir and Kalyangir be put up again for hearing. The application is not tied up to this Bench and should be put up at an early date.