1. The case was posted for hearing for the 2nd October 1882.
2. On that day, at the request of the defendant's vakil, the case was adjourned until the 7th November 1882.
3. On this latter day, plaintiff and his vakil were absent, and the defendant was present.
4. The Judge dismissed the suit without going into the case, defendant's vakil denying plaintiff's claim.
5. An application was made to the Court on the 6th December 1882, under Section 103, * Chapter VII of the Code of Civil Procedure, to set aside the dismissal, on proving that the plaintiff was prevented by sufficient cause from appearing on the 7th November.
6. The Judge, however, on the 6th December records that the dismissal was under Section 158 of the Code, and that the order cannot be set aside as requested.
7. We think the Judge was in error in holding that the suit was dismissed under Section 158, as the facts of the case are not within that Section, but are within Section 157.
8. Section. 158 applies to a party to whom time has been given to do some act and who makes default.
9. In case of default, the Court may proceed to decide the suit forthwith.
10. No time was given to the plaintiff as contemplated by Section 158. The prior adjournment was at the instance of the defendant.
11. We will, therefore, set aside the order of the 6th December 1882, and direct the Judge to hear the application under Chapter VII, Section 103.
12. The costs of this petition will be provided for by the Judge in his revised order.
*Decree against plaintiff by default bars fresh suit.
[Section 103: When a suit is wholly or partially dismissed under Section 102, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal assise; and if it be proved that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall set aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
No order shall be made under this section unless the plaintiff has served the defendant with notice in writing of his application.]