1. In our opinion this case bas not been properly tried and must be sent back to the Court of first instance for a fresh trial.
2. The suit was brought to enforce two mortgages against two persons, Bhagwat Prasad and his son Kalka Prasad, Bhagwat Prasad was alleged to be the executant of the mortgage deeds. The summons issued to the defendants was served personally on Kalka Prasad, but it was affixed to the house of Bhagwat Prasad, who was not found. On the first date fixed for hearing, Kalka Prasad appeared and filed his defense. Bhagwat Pre sad did not appear, and the Court recorded an order directing that the case should be heard against him ex parte. The case, however, was not heard on that date, and the hearing wets postponed to a subsequent date. On that date, Bhagwat Prasad appeared and asked for an adjournment to enable him to file his written statement and to put forward his defense and to adduce his evidence. This application was refused, but the case was, for some reason, adjourned to another date. On that date Bhagwat Prasad again appeared and asked the Court to permit him to file his written statement; and he stated that his witnesses were present in Court and he was ready to adduce his evidence. The Court refused to listen to him and to receive his written statement on the ground that on the first date fixed for hearing, he was not present and the Court had ordered proceeding to be held ex parte against him.
3. This view of the Court of first instance was clearly erroneous and, strangely enough, it was accepted by the lower Appellate Court. No ex parte decree had been passed against Bhagwat Prasad. The mere fact that on the first date fixed for hearing he was not present, and the Court made an order directing that the suit should proceed against him ex parte, did not preclude him from appearing on a subsequent date and offering to file his written statement and to produce his witnesses. His application ought to have been granted and the case ought to have been heard as against him.
4. We allow the appeal, set aside the decree passed against Bhagwat Prasad, and remand the case to the Court of first instance with direction to re-admit the suit as against Bhagwat Prasad and to try it according to law, Costs here and hitherto will be costs in the cause.