Coxe and Doss, JJ.
1. In this case the plaintiffs on the 19th December 1906 brought a suit against the defendants in the Court of the Munsif of Basirhat. The 22nd January was fixed for the hearing of the case. On that date the defendant prayed for time and the case was adjourned to the 19th February. The 19th February being a holiday the case was taken up on the 25th February, when it was again adjourned to the 5th March. On the 5th March the following order was passed: 'The defendants do not appear; examined Kali Krishna Chandra and decreed ex parte.' Subsequently the defendants applied to have this decree set aside under Section 108 of the Civil Procedure Code, and that application was ultimately granted.
2. The plaintiffs now apply to this Court under Section 622 of the Code of Civil Procedure, and ask that the order of the Munsif reviving the case may be set aside on two grounds. The first ground is that the order of the 5th March 1907 is really an order under Section 158 of the Code of Civil Procedure and therefore cannot be set aside on an application under Section 108 of the Code of Civil Procedure. It appears to us that the case is completely governed by the general principles laid down in the cases of Mariannissa v. Ramkalpa Gorain (1907) I.L.R. 34 Calc. 235 and G.P. Cooke v. The Equitable Goal Company (1904) 8 C.W.N. 621. It seems to us that the Court did not, as a matter of fact, on the 5th March 1907, dispose of the case under Section 158 of the Code of Civil Procedure. That section authorises the Court to proceed to decide a suit forthwith. But in this case the Court did not decide the case forthwith, but proceeded to take evidence and decided the case on the evidence so taken. We have been referred to the case of Sitara Begam v. Tulshi Singh (1901) I.L.R. 23 All. 462 as an authority for the proposition that the Court may under Section 158 of the Code of Civil Procedure, take further evidence and decide the case on that evidence. But after reading the decision we do not think that this conclusion follows necessarily from the terms of the judgment. We think, therefore, that the first point fails, and hold that the order of the 5th March 1907 was passed under Section 100 read with Section 157 of the Civil Procedure Code, and could be set aside by an application under Section 108.
3. The second point taken is that the order of the Munsif reviving the case is bad under Section 108 of the Code of Civil Procedure, inasmuch as the Munsif has not found that the defendants were prevented by sufficient cause from appearing on the day fixed. It is impossible to deny that the enquiry made by the Munsif into the matter was perfunctory and the order passed very defective and irregular in form. But it appears on examining the proceedings that that order was an ex parte order. The case under Section 108 was taken up on the 20th February, 21st March and the 11th April. On none of these days were the plaintiffs ready to proceed with the case. The order of the 21st March directed the issue of summonses on the plaintiffs' witnesses at their own risk and so conveyed to them a fair warning that further time would not be given. Then on the 11th April the plaintiffs applied for further time and their application being refused, one of the defendants was examined. The plaintiffs apparently did not cross-examine him and acting on the statement of one of the defendants that he had never heard of the decree, until it was executed, the Munsiff directed the restoration of the suit and a trial de novo. Although, as we have said, we cannot regard the order of the Munsif as in form a proper order, yet we do not think that we ought, in the exercise of the discretion given us by Section 622 of the Code of Civil Procedure, to interfere with it.
4. The result is that this Rule is discharged with costs.