1. The case out of which the Rule arises was instituted so far back as the 25th June 1903. It was at one time dismissed for default; but was again revived, and after innumerable applications for adjournments, it was finally decreed ex parte on the defendant's failing to appear on the 18th May 1910. Early in July, the defendants applied under Order XLVII, Rule 1 to have the case revived on the ground that their Pleader had been prevented from appearing on the day of hearing. This application dragged on until the present year and was finally granted by the Subordinate Judge without giving any reasons for his decision.
2. The case then went on appeal before the Judicial Commissioner and he held that the Subordinate Judge could not have dealt with the matter under Order XLVII, Rule 1, inasmuch as it came properly within the scope of Order IX, Rule 13, and was accordingly barred by limitation. It appears to have been argued before him that the appellants in his Court were not entitled to take this plea inasmuch as they had consented to the revival of the case; but this contention was not accepted by the learned Judicial Commissioner and he accordingly held that the order of the Subordinate Judge was wrong, set it aside and directed that the case should be dismissed.
3. The defendants obtained a Rule from this Court to show cause why that order should not be set aside or why such other order should not be passed as to this Court might seem fit. The view of the learned Judicial Commissioner that the Subordinate Judge could not deal with this matter under Order XLVII, Rule 1 does not appear to be in accordance with the decision in the case of Raj Narain Purkait v. Ananga Mohan bhandari 26 C. 598, and cannot be sustained. The point which really arises for decision in this case is whether the defendants were or were not prevented from appearing on the day fixed for the hearing of the case. This point has not been considered or decided by either of the Courts below. We have not thought it necessary to send back the case inasmuch as there is but little evidence on the point and we have been able to consider it. On reading that evidence, we think that the Subordinate Judge acted with undue haste in finally disposing of the case, and, therefore, the case ought on certain conditions to be re-heard. We would, however, invite the attention of the learned Subordinate Judge to the extreme delay that has occurred in disposing of this case and express our hope that the trial may be conducted more expeditiously in future. In particular, when the Subordinate Judge directs the payment of costs as a condition precedent to proceeding with the suit, it is not sufficient for him to order the payment, but he should see that the money is paid before he proceeds further. For instance, in the present case he directed payment of Rs. 40 to the plaintiff, apparently as a condition precedent to reviving the case, but in the end, he appears to have revived the case without ever attempting to see whether that order had been complied with. We think, therefore, that the proper order to pass will be that, on the present petitioner's depositing in Court the sum of Rs. 40, which they were ordered to pay by the Subordinate Judge, within one week from the arrival of the records in the Court of first instance, the case shall be re-heard.
4. If the money is not paid within this period, this Rule will stand discharged with costs. If the money is paid in time, the costs in this Court, which we assess at two gold mohurs, will abide the result.