1. This is an application in revision from an order restoring a case on certain conditions. The suit out of which this application arises had remained pending for a very long time and 9th August 1926, was fixed for its disposal with express direction that it would not be adjourned again. On that date the defendant did not appear in person but a vakil accompanied by a mukhtar-i-khas appeared for the purpose of filing an application for adjournment on the ground that the defendant had suddenly fallen ill and was unable to come from Bombay. The Court in view of its previous order declined to adjourn the case but called upon the defendant to produce his witnesses and offered to examine him on commission. On this the pleader withdrew from the case stating that he had no further instructions to conduct the case. The Court then treated the defendant as absent and proceeded to dispose of the case ex-parte and decreed the claim.
2. Subsequently the defendant filed an application for seting aside the ex-parte decree. It is this application which was allowed on certain conditions. We are not in this revision concerned with the propriety of the Subordinate Judge in restoring the case. The only point is whether he has acted without jurisdiction or with material irregularity in the conduct of the proceedings.
3. The learned advocate for the applicant contends that the appearence of the vakil and the mukhtar-i-khas amounted to an appearance of the defendant and the case, therefore was not disposed of ex-parte but was disposed of under 0. 17, Rule 3 and that, therefore the Court, had no jurisdiction to treat that decree as an ex-parte decree and had no jurisdiction to restore the case. He relies particularly on the Explanation to Order 17, Rule 2, which has been added recently.
4. There is nothing on the record to show that the mukhtar-i-khas who had appeared had any power to conduct the case apart from engaging a vakil to apply for the adjournment. It is also clear that as soon as the vakil withdrew from the case stating that he had no instruction to proceed with the case there was no longer before the Court any pleader duly instructed so as to be able to answer all material questions relating to the suit within the meaning of Order 5, Rule 1, Sub-clause (2)(b). The proceedings were, therefore, rightly understood by the Court as ex-parte proceedings. In this view he was following the pronouncement of this Court in the case of Krishna Dass v. Ram Ugrah Singh A.I.R. 1923 All. 549. The Court below was not bound to proceed under Rule 3 of the Order. It could and did in fact proceed under Rule 2. The order was accordingly ex parte and was open to be set aside on good cause shown.
5. The contention that, in view of the addition of the Explanation to Rule 2, the old interpretation of the rule should be deemed to have been overruled does not appeal to us. Without this new Explation the interpretation of Order 17, Rule 2 as contended for by the learned Advocate for the applicant would not be consistent with the provisions of Order 5, Rule 1. The new Explanation must, therefore, be deemed to have altered the law and cannot prima facie be retrospective.
6. The original ex-parte decree was passed in August 1926, and the application for restoration was made in September 1926 before the new rule came into force on 11th December 1926. On the date when the application was made the applicant had a substantive right of having the ex-parte decree set aside and the case restored. That substantive right could not be taken away by a subsequent alteration of the law. It is, therefore, clear to us that the order of the Court below dated 3rd February 1927, was governed by the old rule and not by the new rule.
7. The result, therefore, is that this application is dismissed with costs.