Kanhaiya Lal, J.
1. This appeal arises cut of a suit brought by the plaintiffs for a declaration that they were not bound by a decree obtained collusively by the, defendants, Gajadhar Lal and others, against Musammat Puna, the widow of Mangli, and that a sale held in execution of that decree did not effect anything more than the life-interest of the said lady.
2. The 4th of August 1919 was fixed for the hearing of the suit. On that date a the defendant, Gajadhar Lal, applied for an adjournment on the ground that he had summoned his witnesses, but they had not been served. The Court in which the suit was pending granted the adjournment and fixed the 21st August 1919 for its hearing. On that date the plaintiffs were present and the evidence adduced by them was recorded. The contesting defendant, Gajadhar Lal, was not present. His Pleader stated that his client had not turned up till then, that the witnesses summoned by him were also not present; and that he did not know what had happened to prevent them from attending. He expressed his inability in (sic) sequence to proceed with the hearing. On that date a telegram had been received by the, Court from Gajadhar (sic) purporting to have been sent from the Railway, Station Manhar, on the 21st August 1919 at 11-40 a.m., stating that he had missed the train and was lying at Bindki Road with the witnesses and asking that the hearing of the case might be postponed. He had, as a matter fact, summoned eight witnesses on the 13th August 1919 for the date fixed for the hearing; and if his allegation was correct that the witnesses were coming with him by train and had been detained on account of his missing connection at Bindki Road, his absence on the date fixed could have been explicable. The Court, however, proceeded under Order. XVII, Rule 3 to try the suit on the merits and decreed it with costs.
3. An application was subsequently filed by the said defendant, accompanied by an affidavit, for the setting aside of what he described as an ex parte decree, but it was rejected by the Court on the ground that no such application was maintainable. He then filed an appeal from the order rejecting that application and another appeal from the original decree decreeing the suit. The former appeal was dismissed by the learned Subordinate Judge 011 the 10th April 1921. The latter, though filed beyond time, was admitted by him under section 5 of the limitation Act (IX of 1908) and ultimately allowed. The order passed by him in the latter appeal merely declared that the Court of first instance had no power to decide the suit on the merits in the absence of the contesting defendant and that the decree passed by it was only &n; ex pane decree.
4. The legality of that order is challenged here. The order is both in substance and form open to question. The suit was not originally decided ex parte. The Pleader of the contesting defendant was present. He had not stated that he had no instructions to proceed with the hearing. All that he had said, according to the order-sheet, was that his client had not turned up for some reason not known to him, that the witnesses summoned by him had also not attended, and that he was unable to proceed with the case. The Court of first instance thereupon proceeded to decide the suit on the merits and an appeal was maintainable from that decree. By saying that he was unable to proceed with the hearing it cannot be said that the Pleader had withdrawn himself; and the decree passed in that suit cannot, therefore, be regarded as an ex parte decree which could be set aside in the manner laid down in Order IX, Rule 13 of the Code of Civil Procedure. In form the order passed by the lower Appellate Court was similarly open to objection. It was not open to the learned Subordinate Judge to take the view that the decree was an ex parte decree after he had dismissed the appeal, which fad been filed from an order refusing to set it aside, on the ground that the decree was one dealing with the suit on the merits. AH that the learned Subordinate Judge could have done was to have enquired into the reasons which led to the absence of the constesting defendant on the date fixed for hearing, and if he was statistic d that there was sufficient excuse for his absence, he could have passed an order setting aside the decree passed by the Court of first instance and remanded the suit for re-trial after taking such evidence as the contesting defendant wanted to adduce in support of his defence. If he was not satisfied that there was sufficient reason for his absence, it was still necessary for him to have examined the suit on the merits and determined whether the decree passed by the Court of first instance was proper or not.
5. The appeal is, therefore, allowed and the case sent back to the lower Appellate Court with defections-to re-admit the appeal to its original number and to dispose of it, with due regard to the observations made above, in the manner required by law. As the contesting defendant is absent today and the procedure adopted by him has put the plaintiff-appellant to considerable expense and trouble. There is no reason why he should be deprived of the costs incurred by him in filing this appeal. He is, therefore, allowed his costs as against Gajadhar Lal including fees in this Court on the higher scale.