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Sheikh Sacheeni Vs. Sheikh Kanta Hazi - Court Judgment

LegalCrystal Citation
Decided On
Reported in36Ind.Cas.798
AppellantSheikh Sacheeni
RespondentSheikh Kanta Hazi
Cases ReferredKumud Kumar Base v. Hari Mohan Samadar
civil procedure code (act v of 1908), order ix rules 13,14, order xliii rule 1(d) - decree ex prate application for setting aside of--dismissal for default--appeal. - .....set aside and we direct that the appeal be heard by the learned judge of the court below we make no order as to.....

1. The petitioner, who was a defendant in a suit, applied to have an ex-parte decree passed against him set aside. On the day fixed for disposal of the application he applied for time, and that application being rejected, his Pleader intimated to the Court that he had no further instructions. The application for setting aside the ex parte decree was accordingly dismissed for default. He preferred an appeal against the order dismissing (for default) the application to set aside the ex parte decree and that appeal was rejected by the learned Judge below on the ground that no appeal lay This case cannot' be distinguished from the case of Kumud Kumar Base v. Hari Mohan Samadar 30 Ind. Cas. 45 : 21 C.L.J. 628, where it was held under similar circumstances that an appeal lies. The order of the Court below is accordingly set aside and we direct that the appeal be heard by the learned Judge of the Court below We make no order as to costs.

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