JUDGMENT
W. Comer Petheram, C.J.
1. The question raised in this reference is whether a decree passed in a suit to which the defendant has appeared and defended, but was not present or represented at the concluding portion of the hearing is an ex parte decree within the meaning of Section 108 of the Civil Procedure Code.
2. I do not think the point by any means clear, but as the words used in the section are capable of the wider meaning, I do not feel constrained to differ from the rest of the Court upon it and agree to the answer to the question which they propose to give.
O’Kinealy, J.
3. In this case the plaintiff brought a suit in the Court below against three defendants for possession of land, the plaint was filed, and the 10th of August fixed to settle the issues. On this day one only of the defendants appeared and asked for time and got twenty-seven days. Time was granted, and the Court directed the parties to appear on the 6th September. I take the order from the order sheet. None of the defendants appeared on the 6th of September, and the Court gave judgment in favour of the plaintiff in the following terms:
Plaintiff present, defendants absent, though they appeared on a former date. Suit decreed ex parte with costs.
4. It is clear that the Judicial Officer was of opinion that the three defendants had already appeared when he passed this decision.
5. On the 12th September the defendant who had previously appeared applied under Section 108 of the Code of Civil Procedure for an order setting aside the decree on the ground that he was unable to appear on the day fixed for “the adjourned hearing of the case owing to the serious illness of his son. The application was granted by the Court below, and the plaintiff applied to this Court for, and obtained, a rule for setting aside the order of the Court below on the ground that Section 108 applies only to cases in which the defendant has never appeared and is inapplicable to the present case in which the defendant had once entered appearance.
6. In this state of circumstances a Divisional Bench of this Court has referred the following questions to a Full Bench:
First.-Whether Section 108 of the Code of Civil Procedure (Act XIV of 1882) applies to every case in which a decree is passed ex parte against a defendant either under Section 100 by reason of his non-appearance at the first hearing or under Section 157 by reason of his non-appearance at an adjourned hearing, or whether it is limited in its application to cases of the first mentioned description?
Second.-Whether Section 108 of the Code of Civil Procedure applies to a case in which a decree is made ex parte against a defendant, who appeared on the day fixed for the first hearing, and merely applied for and obtained an adjournment of the case, but failed to appear at the adjourned hearing?
7. The facts of the case, as stated by the Judges who made the reference, show that the defendant appeared on the day fixed for the first hearing and applied for and obtained an adjournment of the case, but failed to appear at the adjourned hearing. The only question, therefore, that arises for disposal in this rule on the facts stated in the reference is that stated in the second question. The more general question which has been placed first does not appear to me to arise upon the facts in this case, and I am therefore unable to give judgment upon it. No doubt it may be that in the course of discussing the second question I shall be compelled to indicate more or less my opinion upon the first, but as such opinion would be far beyond the scope of the present reference, I hesitate to answer it expressly.
8. The case has been argued on the effect of several decisions under the previous Codes and other Acts. Considering the changes which have taken place in this portion of the Code, I think this manner of interpreting it is not wholly satisfactory.
9. Therefore, before dealing with the point raised in the reference, I think I should refer to the case of Norendra Nath Sircar v. Kamalbasini Dasi L.R. 23 I.A. 27 : I.L.R. 23 Cal. 563 decided by their Lordships of the Judicial Committee of the Privy council, as laying down the rule by which they should be guided in interpreting the Code of Civil Procedure. Their Lordships say “But we think it may be useful to refer to some observations in a recent case before the House of Lords as to the proper mode of dealing with an Act intended to codify a particular branch of the law.”
10. “I think,” said Lord Herschell in the Bank of England v. Vagliano L.R. A.C. (1891), 107, “the proper course is, in the first instance, to examine the language of the Statute and to ask what is its natural meaning uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view. If a Statute intended to embody in a Code a particular branch of the law is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a Statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used, instead of, as before, roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decisions.”
11. Bearing this advice in mind, I will now call attention to Chapters VII and XIII of the Code of Civil Procedure. Chapter VII relates to the appearance of parties and the consequence of non-appearance. Up to Section 107 it relates to the effect of the appearance and non-appearance of parties in regard to the original case. Sections 108 and 109 refer to the setting aside of decrees called ex parts. The decrees under Section 100, Clause (a) and Section 101 are so designated, and Section 108 would cover the decrees made under either or both of those sections. In the present reference the decree in question was not passed under Chapter VII. One of the defendants had appeared at the first hearing, and at his request the case was adjourned and a new day was fixed for hearing. It was owing to default of appearance by the defendant on the day to which the case was adjourned that the decree was made. The decree therefore appears to me to fall under Section 157 of the Code.
12. Section 157 runs as follows:
If, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Chapter VII, or make such other order as it thinks fit.
13. It is clear from the words of this section that it refers, first, to a case in which the original suit is pending; and, second, to a case where one or other of the parties does not appear; and when those two conditions are satisfied, the Court may dispose of the original suit in the mode directed by Chapter VII when one or other of the parties does not appear.
14. If now we turn to Section 100 we find the rule for decision laid down as follows:
If the plaintiff appears and the defendant does not appear, the procedure shall be as follows:
(a) If it is proved that the summons was duly served, the Court may proceed ex parte.
(b) If it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant.
(c) If it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court and shall direct notice of such day to be given to the defendant.
15. If it is owing to the plaintiff’s default that the summons was not served in sufficient time, the Court shall order him to pay the costs occasioned by such postponement.
16. The present case falls under Clause (a), since a summons is only a notice to appear, and the Munsif did in the words of this section “proceed ex parte,” as may be seen by his order set out above. This ex parte decision under Section 100 of the Civil Procedure Code by virtue of Section 157 is in the same position as any other ex parte decision. The Code makes no distinction. I think therefore the Court had power to apply the provisions of Section 108 of the Civil Procedure Code, and the rule should be discharged with costs.
Macpherson, J.
17. There are two questions referred to us, but the answer to the second question depends entirely upon the construction of Sections 108 and 157 of the Civil Procedure Code, which is involved in the first question.
18. Section 64 of the Code provides that when the plaint has been registered a summons shall issue to each defendant to appear and answer the claim on a specified day, and under Section 68 the summons must be either for the settlement of issues or for the disposal of the suit.
19. Chapter VII, which includes Sections 96 to 109, relates to the appearance of the parties and the consequence of non-appearance on the day fixed in the summons for the defendant to appear and answer. Chapter XII relates to the disposal of the suit at the first hearing, which ordinarily at least is the day fixed for the defendant to appear and answer, and Chapter XIII, which includes Sections 156 to 158, relates to adjournments. Section 156 enables the Court for sufficient cause to adjourn the hearing of the suit from time to time and to fix a day for the further hearing of it. Section 157 provides that, “if on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Chapter VII, or make such orders as it thinks fit.”
20. If, therefore, a defendant who has appeared in obedience to the summons fails to appear on the day to which the hearing is adjourned, the Court may, under Section 100, “proceed ex parte,” That is to say, it may pass a decree against the defendant in his absence on the evidence adduced by the plaintiff, and under Section 100 the Court could take exactly the same course, if the plaintiff appeared and the defendant did not appear on the day fixed in the summons for his appearance.
21. Section 108 provides, however, that, “in any case in which a decree is passed ex parte against? a defendant, he may apply to the Court by which the decree was made for an order to set it aside, and, if he satisfies the Court that the summons was not duly served or that be was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall pass an order to set aside the decree upon such terms as to costs, payment into Court or otherwise, as it thinks fit, and shall appoint a day for proceeding with the suit.”
22. There are no words limiting the application of Section 108 to cases in which the decree is ex parte, because of the defendant’s failure to appear on the day fixed in the summons for his appearance, and the possible words of limitation which appeared in the corresponding section of the Code of 1877, viz., the words “under Section 100” which followed the words “ex parte against a defendant” have been omitted from the present Code. Section 108 is as wide and comprehensive in its terms as it could be, and there is no ground for curtailing its operation so as to deprive a defendant who has appeared in obedience to the summons, but has failed to appear at the adjourned hearings, of the relief given, if an ex parte decree has been made against him.
23. It is said that a decree is not ex parte, if the defendant has once appeared; but I see no ground for so limiting the meaning of, the words as used in the! Code. I think a decree is ex parte, if it is made at an adjourned hearing in the absence of the defendant on evidence adduced by the other side, whether the defendant has or has not appeared at an earlier stage of the case. The Court in either case “proceeds ex parte,” and if the reason of the thing is looked at, it might be expected that some ready relief would be given to a party who, possibly from causes entirely beyond his control, was unable to place his case before the Court. In the great majority of the cases in which a defendant fails to appear at an adjourned hearing, no evidence has been taken. The case has been adjourned, because the parties or some of them were not ready to go to trial, or because the business of the Court did not admit of the case being taken up on the day fixed. When the hearing of evidence has once begun, the hearing of the suit must be continued from day to day, unless the Court finds the adjournment of the hearing to be necessary for reasons to be recorded by the Judge with his own hand.
24. But the cases in which such adjournments are made must be very few in number. An appeal is obviously not the proper remedy, if it is a remedy at all, for a party who apparently on the face of the record is in default and whose evidence has been excluded owing to his default. The Original Court has committed no error, and in disposing of the case has taken the course which the law authorizes it to take. Until the default is cleared, the Appellate Court can do no more than the Original Court could do, and surely that Court is the Court to which it was intended he should go in order to clear himself.
25. It is unnecessary to consider whether there is a remedy by way of an application for a revision of judgment. If such a remedy exists, it is not, I think, the appropriate remedy, and it does not deprive the defendant of the direct and appropriate relief which is, in my judgment, provided by Section 108.
26. I am disposed to hold that the words “dispose of the suit” in Section 157 are not limited to the mere disposal of it in one of the modes directed in Chapter VII, but that they import the relief consequent on such disposal given to the parties by that chapter. However this may be, there is, I think, no way of getting over the clear and comprehensive terms of Section 108.
27. I agree with the learned Judges who referred this case that the decision of the Privy Council in Zain-ul-Abdin Khan v. Ahmed Baza Khan I.L.R. 2 All. 67 does not touch the matter now before us.
28. I would, for the reason given, answer the first part of the first question in the affirmative, and the last part, which is in the alternative form, in the negative; and I would answer the second question in the affirmative, with the result that the rule should be discharged.
Treyelyan, J.
29. The real question which is to be determined in the case is the second of the questions referred to us. It is in the following words: “Whether Section 108 of the Code of Civil Procedure applies to a case in which a decree is made ex parte against a defendant who appeared on the day fixed for the first hearing and merely applied for and obtained an adjournment of the case but failed to appear at the adjourned hearing.” This question, in my opinion, depends entirely upon what effect should be given to Section 157 of the Civil Procedure Code. That section gives the Court power under the circumstances therein mentioned “to dispose of the suit in one of the modes directed in that behalf by Chapter VII.” If this power includes the power to deal with a case under Section 108, then it would follow that-the order of the Court below is right.
30. It has been argued that the words “dispose of merely include the dealing with a suit up to the time when the ex parte decree is passed; and that the sections of Chapter VII which gave a remedy to the person in whose favour the decree has been passed will not apply, namely, Sections 103 and 108, the former dealing with the relief given to the plaintiff and the latter with the relief given to the defendant. In my opinion this being a Code of Procedure, we ought to construe the words of the section as far as possible to enable the parties to get relief from defaults or other mischances which may have prevented the real questions between the parties from being tried. Dispose of” would, I think, include dealing with a suit, not only before decree, but after an ex parte decree has been passed. If it had been intended to exclude Sections 103 and 108, such exclusion might have been easily shown in Section 157. “To dispose of the suit” does not, I think, mean only to give a decree, but it also includes the remedies given by Sections 103 and 108. I do not think it likely that the Legislature could have intended to include only the portions of the chapter which provide for decrees, and not to include the relief portions contained in Sections 103 and 108. These sections are a portion of the chapter and are not separated from the other portions in any way. I would, therefore, answer the second question in the affirmative and discharge the rule with costs.
31. It is not necessary, in my opinion, to decide whether the defendant has a remedy by way of review, as I think he has the remedy provided by Section 108 at any rate.
Ghose, J.
32. The questions that have been referred to the Full Bench are:
First.-Whether Section 108 of the Code of Civil Procedure (Act XIV of 1882) applies to every case in which a decree is passed ex parte against a defendant, either under Section 100 by reason of his non-appearance at the first hearing or under Section 157 by reason of his non-appearance at an adjourned hearing, or whether it is limited in its application to cases of the first mentioned description?
Second.-Whether Section 108 of the Code of Civil Procedure applies to a case in which a decree is made ex parte against a defendant who appeared on the day fixed for the first hearing and merely applied for and obtained an adjournment of the case, but failed to appear at the adjourned hearing?
33. Both these questions, to my mind, are practically the same. The second question, however, applies to the precise facts of the case before us; and I think it would be sufficient if we were to answer it.
34. There can, I think, be no doubt that, reading the various sections in Chapter VII of the Code of Civil Procedure, as wholly unconnected with Chapter XII, which in Section 157 treats of the case of an adjourned hearing, Section 108 would seem to be confined to an ex parte decree passed on the day fixed for the first hearing of the suit. But Section 157 provides that “if on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of. the modes directed, in that behalf by Chapter VII, or make such other order as it thinks fit.”
35. The section says the Court may dispose of the suit in one of the modes directed in Chapter VII. If the expression “dispose of the suit” refers simply to the disposal of the suit by the ex parte decree, and by that-decree alone, and the word “modes” means simply the procedure prescribed, up to the passing of the ex parte decree, and does not include the procedure provided for setting aside that decree, then, no doubt, Section 108 can have no application to the case, and the defendant is not entitled to the remedy which the Code allows to a defendant against whom an etc parte decree is made under Section 100. I confess that Section 157 is capable of that construction.
36. It will, however, be observed that a suit is not disposed of under Chapter VII by the ex parte decree, because that decree is liable to be set aside upon application; and when it is so set aside, a fresh decree has to be made. The expression “dispose of the suit” may well refer, not only to the disposal of the suit ex parte, but also to the final disposal of it; and in this view, the procedure indicated by the word “modes” would include both the procedure and remedy prescribed by Section 108, under which the final decree has to be made. And if this construction is accepted, Section 157 harmonizes with the several sections of Chapter VII and the other portions of the Code. And lam inclined to accept this construction as the right construction.
37. I am disposed to think that the Legislature could not have contemplated that a defendant, who does not appear on the date fixed for the first hearing, and one who makes a formal appearance on that date, but fails, for any sufficient cause, to appear on an adjourned hearing, and against whom a decree is therefore made ex parte, should be placed on different footings. Indeed, the cases of both the defendants stand upon the same ground and the same principle, upon which a defendant, against whom an ex parte decree is passed under Section 100, is allowed to have that decree set aside under Section 108, equally applies to a defendant who fails to appear on the adjourned hearing.
38. Upon these grounds I would answer the second question in the affirmative.
Beverley, J.
39. I am of opinion that the case of Sital Hari Banerjee v. Heera Lal Chatterjee I.L.R. 21 Cal. 269 was wrongly decided, and that when a suit is decreed against a defendant ex parte on a day to which the hearing has been adjourned under the provisions of Sections 157 and 100, Clause (a), of the Code, it is open to the defendant to apply to have the decree set aside in accordance with the provisions of Section 108.
40. Section 157 says that, “if on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed. to dispose of the suit in one of the modes directed in that behalf by Chapter VII, or make such other order as it thinks fit.”
41. If then the defendant fails to appear on any day to which the hearing of the suit is adjourned, the Court may under the previsions of Section 100, Clause (a), “processed ex parte,” and may decree the suit against the defendant.
42. Then Section 108 says:
In any case in which a decree is passed ex parte against a defendant he may apply to the Court by which the decree was made for an order to set it aside, and if he satisfies the Court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall pass an order to set aside the decree upon such terms as to costs, payment into Court or otherwise, as it thinks fit, and shall appoint a day for proceeding with the suit.
43. I think it must be taken, in the absence of express words to the contrary, that the Legislature, when it extended the provisions of Chapter VII to an adjourned hearing, intended to make the entire chapter applicable, including Sections 103 and 108. A suit may be decided ex parte under that chapter, subject to the right of the absent plaintiff or defendant to come in within a certain time and have the ex parte decree set aside, if he can succeed in satisfying the Court that he was prevented by sufficient cause from appearing at the hearing. Section 157 extends the provisions of that chapter to cases in which the plaintiff or defendant fails to appear at an adjourned hearing, and when the section says that the suit may be “disposed of” under that chapter, it must be taken to mean that it may be so disposed of, subject to the right which that chapter gives to either party to have an ex parte decree set aside.
44. If this is not so, a plaintiff or defendant who is unavoidably prevented from appearing at the adjourned hearing is more or less without remedy. He may be able to appeal or to apply for a review of judgment, but without taking into consideration the heavy Court-fee he would be called on to pay in either case, it is very doubtful whether he could properly obtain redress in either proceeding. If it is the plaintiff, for instance, who fails to appear, Section 102 says that the Court shall dismiss the suit, and neither in appeal nor in an application for review of judgment could it be contended that the order of dismissal was wrong. The true remedy in such a case is provided by Section 103 just in the same way as Section 108 is intended to provide a remedy for a defendant against whom an ex parte decree has been passed in his unavoidable absence.
45. This view of the law is also borne out by the analogous procedure laid down for the hearing of appeals. Section 556 says that, “if on the day so fixed or any other day to which the hearing may be adjourned, the appellant does not attend in person or by his pleader, the appeal shall be dismissed for default. If the appellant attends and the respondent does not attend, the appeal shall be heard ex parte in his absence.” Section 558 provides for the re-admission of an appeal which has been dismissed for default, and Section 560 provides for the re-hearing of an appeal which has been heard ex parte in the absence of the respondent. And both these sections, it is to be observed, apply by the express words of the Code whether the appeal was disposed of on the day fixed for the hearing, or on any other day to which the hearing has been adjourned.
46. In the case before us two out of the three defendants did not appear at all; the third appeared on the day fixed for the hearing, obtained an adjournment, but failed to appear at the adjourned hearing. I am of opinion that the case was decided ex parte against all the defendants, and. that the third defendant was entitled under the provisions of Section 108 of the Code to apply to have the decree set aside.
Banerjee, J.
47. The facts of the case have been sufficiently set out in the order of reference, and»I need not repeat them here.
48. Upon these facts, the two questions that arise for consideration are:
First.-Whether Section 108 of the Code of Civil Procedure (Act XIV of 1882) applies to every case in which a decree is passed ex parte against a defendant, either under Section 100 by reason of his non-appearance at the first hearing or under Section 157 by reason of his non-appearance at an adjourned hearing, or whether it is limited in its application to cases of the first mentioned description?
Second.-Whether Section 108 of the Code of Civil Procedure applies to a case in which a decree is made ex parte against a defendant who appeared on the day fixed for the first hearing and merely applied for and obtained an adjournment of the case, but failed to appear at the adjourned’ hearing?
49. If the first part of the first question is answered in the affirmative and therefore the second part in the negative, that would be sufficient for the disposal of the case, and the rule would have to be discharged. If, on the contrary, the first part of the first question be answered in the negative and the second part in the affirmative, then it would be necessary to consider the second question, which involves the point raised in the contention that, even if Section 108 is limited in its application to cases coming under Section 100, irrespective of Section 157, still it is applicable to this case, because appearance on the day fixed for first hearing to obtain time, is not such appearance as would take the case out of the purview of Section 100.
50. The answer to the first question depends upon the meaning of Sections 108 and 157 of the Code of Civil Procedure. Section 108 runs thus: “In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was made for an order to set it aside, etc. ” The language of the section would therefore make it applicable to every case in which a decree is made ex parte against a defendant, irrespective of the question whether such decree is made under Section 100 by reason of his non-appearance at the first hearing, or whether it is made under Section 157 by reason of his non-appearance at an adjourned hearing. That a decree made in the absence of the defendant in the latter case comes under the description of an ex parte decree is clear from the consideration that the last-mentioned section authorises the Court upon default of the defendant to appear at an adjourned hearing, to proceed “to dispose of the suit in one of the modes directed in that behalf by Chapter VII,” and the mode applicable to the case is that provided by Section 100, Clause (a), which says that the Court may proceed ex parte.
51. Is there any reason then for limiting the application of Section 108 to cases of the first-mentioned description only? It is said that the position of the section in the Code of Civil Procedure points to such a reason; that Section 108 must be taken to contemplate only cases in which ex parte decrees are made under some one or other of the sections preceding it; that it can apply to a decree made ex parte under the provisions of Section 157 which follows it and which occurs in a different chapter of the Code only if Section 157 makes it applicable to such a decree; and that Section 157 does not make it so applicable.
52. I am unable to accept this view as correct. If Section 157, which makes the procedure prescribed in Chapter VII of the Code relating to cases in which there is failure of appearance at. the first hearing, applicable to cases of non-appearance at an adjourned hearing, had contained any limitation to the applicability of such procedure, so far as Section 108 was concerned, the limitation Would certainly have been operative, notwithstanding the unrestricted language of Section 108. But there is no such limitation in Section 157. It makes the procedure of Chapter VII applicable without qualification to cases of default of appearance at adjourned hearings. Then, again, as has been said in the order of reference, Act XIV of 1882 must be taken as a continuous Code, the different sections being simultaneously enacted in view of each other, and when Section 108 speaks of any case in which a decree is passed ex parte against a defendant, we must take it as meaning any case in which such decree is made under any provision of the Code, whether preceding or following it. Moreover, the arrangement of the sections in the Code of Civil Procedure, though it observes in the main the order of time in which the provisions they embody may have to be applied, is by no means such as would alone and of itself justify us in restricting the meaning of any section in disregard of its plain and unqualified language. A reference to Section 98, which occurs in Chapter VII of the Code, but which provides for non-appearance at an adjourned hearing, would show that Chapter VII is not absolutely limited to the consideration of cases of non-appearance at the first hearing alone.
53. While thus the position of the section does not in my opinion warrant the inference that it is limited in its application to cases of decrees made ex parte against defendants under Section 100 by reason of non-appearance at the first hearing, a comparison of Section 108, with the corresponding section of the former Code of Civil Procedure (Act X of 1877), will clearly show that no such limitation could have been intended. For Section 108 of Act X of 1877 ran as follows: “In any case in which a decree is passed ex parte against a defendant under Section 100, he may apply, etc.,” and in the section as it now stands the words “under Section 100” have been advisedly left out.
54. The same view is also supported by the corresponding provisions of the Code relating to ex parte decrees in appeal. For Sections 556 and 560 show that the remedy by way of an application for setting aside an ex parte decree is left open to the respondent in all cases, whether the ex parte hearing of the appeal is the result of his non-appearance on the day originally fixed for hearing, or is due to his non-appearance on an adjourned date.
55. Nor can I find anything in principle in support of the limited construction of Section 108 that has been contended for. If the remedy by way of an application for setting aside an ex parte decree be allowed to a defendant against whom such a decree is made in consequence of his failure to appear at the first hearing, there is no reason why the same remedy should not be left open to him when an ex parte decree is made against him in consequence of his failure to appear at an adjourned hearing, when it may often be, as in the present case it was, the real first hearing of the suit, the earlier hearing being confined to the consideration of some preliminary matter, such as an application for time. Moreover, though a defendant against whom a decree is made ex parte may have a remedy by way of an appeal or an application for review of judgment, the remedy by an application for setting aside the ex parte decree on the ground that he was prevented by a sufficient cause from appearing is, in my opinion, the most appropriate remedy for him, whether the default of appearance occurred at the first hearing or at an adjourned hearing. For while in an appeal always, and in an application for review generally, the complaint is that the Court was wrong in deciding the case in the way it did, the complaint of a defendant against whom a decree is made ex parte for default of appearance at any hearing when he wishes to be heard further is, not that the Court was wrong in deciding the case as it has done upon the materials placed, before it, but that he was prevented by sufficient cause from appearing and placing before the Court proper materials upon which” it might have come to a different decision.
56. I am of opinion, therefore, that, upon a proper construction of Section 108, it is applicable to every case in which a decree is made ex parte against a defendant whether such’ a decree is made under Section 100 by reason of his non-appearance at the first hearing, or it is made under Section 157 read with Section 100 by reason of his non appearance at an adjourned hearing.
57. It remains now to consider the oases cited in the argument. I may confine my attention to the oases of Zain-ul-Abdin Khan v. Ahmed Baza Khan I.L.R. 2 All. 67 and Sital Hari Banerjee v. Heera Lal Chatterjee I.L.R. 21 Cal. 269 and the, three unreported cases relied upon for the petitioner, and those of Kali Churn Dutt v. Modhu Sudan Ghose (6 W.R. 86), and Denoo Paroye v. Chintamonee Chowdhry (18 W.R. 457), relied upon on the opposite side, these being the only cases that can have any bearing upon the question before us.
58. The case of Zain-ul-Abdin Khan v. Ahmed Baza Khan I.L.R. 2 All. 67 is, as has been pointed out in the order of reference, clearly distinguishable from the present. There the question was, to use the language of the judgment of their Lordships of the Privy Council, “whether the first part of Section 119 of Act VIII of 1859 applies to a case which has been decided under the provisions of Section 147 of the same Act,” and that question was answered in the negative. The question now before us is a very different one. Nor does the reason upon which their Lordships base their decision apply to this case. That reason is summed up in these words: ‘Looking at all the sections together, their Lordships are of opinion that the words’ who has not appeared’ as-used in Section 119 mean, ‘who has not appeared at all,’ and do not apply to the case of a defendant who has once appeared, but who fails to appear on a day to which the cause has been adjourned.” There are no such words as ‘who has not appeared,’ nor is there anything equivalent to them, in Section 108 of the present Code.
59. In Sital Hari Banerjee v. Heera Lal Chatterjee I.L.R. 21 Cal. 269, which is no doubt a case in point, the decision is based upon an inference deduced from the position of Section 108 in the Code and upon the authority of Zain-ul-Abdin Khan v. Ahmed Baza Khan I.L.R. 2 All. 67. But in my opinion, as I have tried to point out above, the position of Section 108 in the Code does not warrant an inference of the kind, and the case of Zain-id-Abdin Khan v. Ahmed Baza Khan I.L.R. 2 All. 67 does not touch the present question.
60. The three unreported cases cited are based principally, if not entirely, upon Sital Hari Banerjee v. Heera Lall Chatterjee I.L.R. 21 Cal. 269, and do not require any separate examination.
61. The case of Kalee Churn Dutt v. Madhoo Soodan Ghose (6 W.R. 86), is not quite in point, though there is a remark in the judgment in favour of the view I take.
62. In Denoo Paroye y. Chintamonee Chowdhry (18 W.R. 457), which is a case in point, this Court held that a defendant who had appeared on the first day of hearing, but failed to appear on the second day to which the hearing was adjourned, was entitled to apply to the Court under the latter part of Section 119 of Act VIII of 1859 (which corresponds to Section 108 of the present Code of Civil Procedure) for setting aside the decree passed ex parte against him.
63. There is, therefore, some conflict of authority : the later decisions of this Court are opposed to the view I take. But I feel bound, for the reasons given above, respectfully to dissent from those decisions.
64. After giving the matter my best attention, the conclusion I arrive at is that the first part of the first question stated above should be answered in the affirmative, and the second part in the negative. In this view of the case it becomes unnecessary to consider the second question.
65. The result in my opinion is that the rule should be discharged with costs.
