Scroope, J.:— (After stating the facts set out above, proceeded as follows): A preliminary objection is taken that no appeal lies: it is urged that Order XLIII, rule 1(d), which allows an appeal from an order dismissing an application under Order IX, rule 13, applies only where there has been an actual hearing of the application and that in this case there was no actual hearing of the application which was dismissed for default. But there is direct authority in the case of Kumud Kumar Bose v. Hari Mohan Samadar for holding that an appeal lies under Order XLIII, rule 1(d), against an order dismissing for default an application to set aside an ex parte decree and the learned Vakil for the respondent has not shown any authority for discriminating for the purpose of Order XLIII, rule 1(d), in this way between a dismissal on the merits and a dismissal for default. This contention therefore cannot succeed.
As regards the merits of the appeal there is no getting away from the fact that on the 13th March there was a direction of the court that the parties, must come ready by the 27th March and that it was only, on the 22nd March that the application for the examination of Dr. Khan on commission was made. The appellant, must have known that there was no possible chance of getting a commission executed at such short notice, and I do not see any substance in the argument put forward that at least the court might have sent out the commission and allowed it to take its chance. Obviously there was no chance of it being executed. Besides, after the refusal to issue the writ of commission, there was no reason why the appellant should not have had her pleader Suresh Chandra Singh examined on her behalf as the real ground for the rehearing application was that her son-in-law had made a mistake and had gone to the wrong pleader. No application was made at any stage to examine either pleader. Further the application which was filed on the 23rd March for the examination of witnesses shows that there were Jharia witnesses and there is nothing to show why the application could not have been made before to examine these three witnesses. Another feature is that the appellant on her own showing had entrusted the management of the case to her son-in-law on the 5th January, 1926. It is not suggested that he ever offered himself for examination in the rehearing matter. He must have known all the facts and was the person really in charge of the case yet no attempt was made to have him examined. There is no doubt that the appellant put off till the eleventh hour any real effort to take steps to support her restoration petition by evidence and if she has now suffered for it, it is her own fault. She was certainly guilty of laches in the matter, and, on the materials before me, I would say that the learned Subordinate Judge had no alternative but to dismiss the rehearing application for default, and I can see no reason for disturbing that decision.
The appeal accordingly fails and is dismissed with costs.
Adami, J.:— I agree.
Appeal dismissed.