S. Subrahmanya Aiyar, Officiating C.J.
1. The facts of the case, so far as they are necessary for the present purpose, are as follows : - The plaintiffs, sons of one Singam Aiyangar, brought this suit against the first defendant and his son, the second defendant, a minor, for the recovery of Rs. 5,800 and odd stated to be due under a mortgage executed to Singam Aiyangar, by the first defendant. The second defendant set up that he had been adopted by the first defendant's uncle who was alleged to be entitled to a moiety of the property mortgaged, and contended that the mortgage was not binding on him to the extent of his interest in the laud. After the settlement of issues, the case was adjourned to the 25th May 1901 for trial, on which date, however, the trial did not come off as there were negotiations for a compromise, and the case was adjourned to the 15th June. The first defendant then presented a petition praying that an issue be framed as to a compromise which, he said, had been entered into between himself and the plaintiffs, but which the plaintiffs were unwilling to act up to, and asked for postponement of the trial of the case. The second defendant's alleged adoptive mother, who was his guardian ad litem, applied through the second defendant's vakil for three week's adjournment, alleging that owing to negotiations for a compromise between the plaintiff and the first defendant according to which, as she understood, the second ' defendant was to be exonerated, she was not ready with the evidence to be adduced on his behalf. On the 18th June the suit was adjourned to the 26th idem; the language of the order, though recorded on each of the above petitions, being merely 'adjourned to 26th June.' On the 24th June, the second defendant's guardian ad litem presented a petition praying that two month's time be allowed to her to produce evidence on behalf of the second defendant. This petition came on for hearing on the 26th and was rejected. Upon such rejection, the Vakil, who till then appeared for the second defendant and who moved the application, informed the Court that he had no instructions in the case, and abstained from taking any part in the proceedings which took place in the suit. The trial was proceeded with, the guardian ad litem of the second defendant being absent, but the other parties being either present or represented. After some evidence was recorded, a decree was given in favour of the plaintiffs making the land inclusive of the second defendant's share liable. On the plaintiff's proceeding to execute this decree the second defendant's guardian ad litem applied under Section 108 of the Civil Procedure Code to have the decree set aside. The District Judge dismissed the application, being of opinion that the decree should be taken as one passed under Section 158 of the Civil Procedure Code. No doubt, if the case were one in which time had been specifically granted to the second defendant 'to produce his evidence or to cause the attendance of his witnesses or to perform some other act necessary to the further progress of the suit' and he had failed to do what time had been granted to him for, the procedure might be said to have been under Section 158. But such was not the case. True, the application on behalf of the second defendant dated the 15th June prayed for an adjournment for three weeks to enable the applicant to take out summonses for her witnesses. But what took place on the 18th when her petition as well as that of the first defendant was disposed of, and the terms of the order itself, show that the adjournment was an adjournment of the suit with reference to all these parties and that the adjourned date was not fixed for the purpose of anything being specifically done on behalf of the second defendant, as apparently was taken to be the case in Rangaswami v. Srirangam (1869) 4 M.H.C.R. 254, Comalammal v. Rangaswami (1871) 4 M.H.C.R. 56 and Ambalavana v. Subrahmania (1868) 6 M.H.C.R. 262. The ground taken by the District Judge in dismissing the petition was clearly, therefore, unsustainable, and the action of the Court must be taken to have been under Section 157 of the Code of Civil Procedure.
2. The learned Vakil for the plaintiffs, however, urged before us that, even in this view, it did not follow that the decree, in so far as the second defendant was concerned, was an ex-parte decree, and that the case should be deemed to be governed by the latter part of the section, and the decree taken to be one passed after an order of the description contemplated by the words 'or make such other order as it thinks fit' in the section. It is not quite easy to follow this contention. The obvious meaning of the section in question is that, if on the day to which the hearing is adjourned, the parties or any of them fail to appear, it is discretionary with the Court to adopt one of two courses, viz., either at once proceed to dispose of the case and bring it to a termination in one of the modes pointed out in Chapter VII or defer the disposal of the suit making any order pursuant thereto. If this is the correct view, as it seems to be, it follows that the latter part of Section 157 has absolutely no application to a case such as the present where the Court at once proceeded to trial and judgment.
3. The remaining question for determination is whether on the 26th, the second defendant did not 'appear' notwithstanding that his vakil was present and applied for adjournment. The cases of Soonderlal v. Goorprasad I.L.R. (1898) B. 414 and Latta Prasad v. Nand Kishore I.L.R. (1899) A. 66 which fully deal with the law bearing on the question under consideration, clearly establish that the mere fact of the pleader appearing for a party and applying for an adjournment does not preclude the conclusion that the party, nevertheless, did not appear within the meaning of Section 157 and Chapter VII of the Code of Civil Procedure. No doubt, in the present case, the Pleader who moved for the adjournment had not been retained solely for that purpose. But the course adopted by him after the adjournment was refused leaves no alternative but to hold that he thenceforward ceased to represent his client. Of course a Pleader may have no instructions', and yet he may not withdraw from the case; nor does the circumstance that he informs the Court that he has no instructions, necessarily imply an intimation that he does withdraw. In cases where a Pleader makes such a communication it would be well explicitly to ascertain whether the Pleader severs his connection with the case. Though this was not done in the present instance, it is impossible to doubt that such was, in fact, the case when it is seen that after stating he had no instructions the Pleader altogether abstained from taking any part in the examination of witnesses, or in the argument of the case - more especially as he had been appearing for a party who was incapable of acting for himself and whose guardian ad litem was absent.
4. The decree passed against the second defendant in such circumstances, must be held to have been an ex-parte decree. The order of the District Judge must therefore be reversed. The second defendant's application must be restored to file and dealt with according to law. Costs will abide the result.
1. The guardian of the second defendant applied to the District Court under Section 108, C.P.C., to set aside a decree passed against him alleging that it was an ex-parte decree.
2. The District Judge dismissed the application, being of opinion that the suit had not been disposed of ex-parte, but under Section 158, C.P.C., this is the appeal from that order.
3. The facts are as follows:
Up till the 28th June 1901 the suit proceeded in the ordinary manner in the presence of all the parties and their Pleaders. It appears that some attempts had been made to effect a razinama, but they fell through; and on the 18th the Court, in the presence of all the parties, adjourned the suit to the 26th June 1901 for final disposal, the pleaders on both sides concurring in the order and undertaking to, be ready on that date - vide counter-petition of the plaintiffs dated the 30th August 1902. In the face of this specific statement it is not now open to the plaintiffs' Vakil to argue that the adjournment till the 26th was granted for the convenience of the two defendants above, and thus that the case falls under Section 158, C.P.C., which 'applies where any party had a case adjourned and on the day of adjournment he is not ready' - vide Alwar Ayyangar v. Seshammal I.L.R. (1887) M. 270. I consider that the adjournment granted in this case was one given for the convenience of all the parties.
4. The question now arises whether the second defendant who is the present petitioner put in an appearance or not at the final hearing. Up till the 18th June the second defendant had only appeared - on the 15th June the 2nd defendant's guardian through his Vakil applied for a three weeks' adjournment. The case was then posted for the 26th June for final disposal. On the 18th June the same date was settled. On the 24th June the same Pleader petitioned for two months' adjournment. An order was passed on the 26th June, the date of final hearing, rejecting the petition. There is nothing to show that the guardian of the 2nd defendant was present in person 011 the 26th June. I take it she was not. When the adjournment was refused the Pleader stated that he had no instructions and ceased to take any further steps in the case. The Judge proceeded to dispose of the suit and granted a decree in favour of the plaintiffs. Am I to say that the-Judge proceeded under the first part of Section 157, C.P.C.?
5. A number of cases have been referred to in the argument. The case which seems to be the most nearly in point is Soonder Lal v. Goorprasad I.L.R. (1898) B. 414. In that case after a number of adjournments by consent the regular Pleader of one of the parties was unable to attend. Another Pleader appeared, accompanied by the agent of his clients) and applied for an adjournment for two months-The adjournment was refused and the Pleader withdrew from the case. It was held that from that moment the party ceased to be represented in the suit. I am of opinion that when the Pleader in the present case declared that he had no instructions and ceased to take any action in the case, the party was unrepresented and the Court proceeded to dispose of the suit ex-parte. I cannot accept the learned Pleader's argument that the Judge acted under the second part of Section 157, C.P.C. by ordering the hearing to proceed.
6. I would set aside the order of the District Court and remand the case for disposal according to law.
7. Costs will abide the result.