Mukerji, Ag. C. J.
1. This is an appeal against an order dated 13th January 1932 by which the learned Subordinate Judge refused to set aside an ex parte decree that he had made against Kanhaiya Lal, the appellant. It appears that Kanhaiya Lal was one of the transferees on a part of the alleged family property in a suit for partition instituted by Govind Prasad. Kanhaiya Lal had contested the suit having filed a written statement. The case could not be heard for a long time for the reason that the learned Judge was engaged in hearing a big suit known as the Tikari Raj suit. We find from his English notes that on 27th August 1930 he made an order the concluding portion of which was this:
There is no time owing to the hearing of the Tikari Raj case; and case to be postponed for fixing a date for final hearing.
2. It will be noticed that on 25th August 1932 the order was that the case was to remain without any date for hearing being fixed for it. If a date for hearing had been fixed it would have been the duty of the parties to appear in Court on that date and to ascertain what was being done in the case. No date having been fixed the parties were naturally unaware when any orders would be passed and what orders would be passed. Then we find that on 8th January 1931 the learned Judge made the following order:
Case taken up today as judgment in Tikari Raj case is about to finish. This case to come up for final hearing on 2nd Februaiy 1981; inform the parties.
3. The sentence 'inform the parties' clearly indicates and the circumstances also point to the same conclusion that when on 8th January 1931 the learned Judge fixed 2nd February 1931 for hearing, he knew that the parties were taking no interest in the case for the simple reason that they did not know when a date would be fixed. The Judge accordingly directed that the parties should be informed. On the vernacular order sheet we find that the signatures of the various pleaders were taken but it is common ground that none of the two counsel for the appellant was asked to sign the order sheet. This means that none of the two counsel got the information that the case was to be taken up on the 2nd February 1931. In these circumstances it is difficult to see how the appellant could have come on that date to attend to the case. There is no doubt a pertinent remark in the judgment of the Court below that it was the duly of the applicant to take an interest in his case and to enquire about the date fixed. But this remark is not justified in the circumstances stated above. We have no reason to suppose that the defendant was neglecting his case or that he had no interest in prosecuting his defence. We allow the appeal, set aside the order of 13th January 1932 and direct that the suit be restored to its original number on the file (the ex parte order against the applicant having been set aside) and that it be heard in accordance with law. If the learned Subordinate Judge thinks that in the interest of justice the whole decree should be re-opened it will be open to him to make that order. As we do not know any other circumstances of the case we refrain from opening up the entire decree but we leave it to the Court below to do as the circumstances necessitate.