1. This is an appeal by the defendants-appellants against an order of the learned Additional District Judge of Tipperah, dated the 19th July 1916, refusing to restore an appeal which had been dismissed for default. The case is a very simple one. This appeal was filed in the Court of the District Judge and registered on the 25th September 1915. After having the normal run, it was transferred on the 31st January 1916 to the 61e of the Second Subordinate Judge for disposal. Several adjournments were then taken until we come to the 26th June 1916, when the appeal was adjourned till the 17th July for hearing. On the 11th July 1916, without notice to any party, the case by the order of the District Judge was transferred from the file of the Second Subordinate Judge to that of the Additional District Judge. On the 17 th July the case was taken up by the learned Additional District Judge and dismissed, as neither party was present. Then, an application was made the very next day to set aside that order and the learned Additional District Judge on the 19th July 1915 refused that application. I do not think that the order can stand. It seems to be quite clear that the learned Judge's view that he could not accept the statement of the defendants-appellants was not well-founded. That application was filed the very next day that he dismissed the appeal for default, and what seems to be quite clear is this that the defendants-appellants set up in this case from the very outset that they were in the Court of the Second Subordinate Judge waiting for their case to come on and did not know that their case had been transferred or called on before the learned Additional District Judge. That case has good support because the respondent to the appeal, the plaintiff, was also absent and it is unlikely that, having got the judgment of the first Court in his favour, he was not going to appear at the hearing of the appeal Every thing points to the fact that he intended to appear in the appeal and, if he intended to appear, he would have probably attended the Court. I expect that he was also in the Court of the Second Subordinate Judge. I think the case ought to be heard on the merits. But the plaintiff ought to be indemnified for any costs that he has been put to by reason of the defendants being in default. We, therefore, direct that upon the defendants-appellants paying to the plaintiff-respondent within one month from the arrival of the record in the lower Appellate Court the costs of this appeal, the appeal to the Court below will be restored and heard on the merits. On failure to pay the costs as aforesaid within the time limited, this appeal will stand dismissed with costs. We assess the hearing fee at one gold mohur.
Syed Shamsul Huda, J.
2. I agree.