JUDGMENT
Mukerji, J.
1. This application in revision must succeed. It appears that an ex parte decree was passed in favour of the applicants before us. Within a few days of the passing of the decree, the defendants made an application for the setting aside of the ex parte decree and for a re-hearing of the suit. Two points were taken by the plaintiffs: First the decree was not an ex parte one but was a contested decree, the defendant’s counsel having been present on the occasion, and secondly, no good cause had been shown for setting aside the ex parte decree. The learned Subordinate Judge did not consider any of these two points raised. His order was passed on 12th July 1932 in the following language:
Let the applicants pay Rs. 67-8-0 as costs of the day to the plaintiffs’ pleader by 15th August 1932, when the suit will be restored, otherwise not.
2. On 17th August the following order was passed:
As the costs have been paid by the applicants, the case is restored to its original number and shall come up for hearing on 14th October 1932.
3. As soon as the High Court reopened on 11th October 1932 a petition was filed and an application was made to the Court below to stay the hearing of the case as a revision had been filed. The learned Subordinate Judge acceded to this request and eventually received an order from this Court not to hear the case till the revision had been decided. It has been argued for the respondents by Mr. G.L. Agarwala that the plaintiffs having accepted the costs awarded by the order of 12th July 1932 they are estopped from maintaining the application in revision. There is however nothing on the record to show that the costs were taken by the plaintiffs’ pleader in token of acceptance of the (validity of the order. On the other hand, we find from the plaintiffs’ conduct, namely that they filed their application in revision as soon as the High Court reopened, and that they never proposed to acquiesce in the order for setting aside the ex parte decree. As the defendants’ application has not been properly considered we set aside the orders of 12th July 1932 and 14th October 1932 and send back the case to the learned Subordinate Judge to be decided in accordance with the law. Costs here and hitherto will abide the result.
