1. In our opinion this case has not been properly tried and must be sent back to the Court of first instance for afresh trial.
2. The suit was brought to enforce two mortgages against two persons, Bhagwat Prasad and his son Kalka, Prasad.
3. Bnagwat Prasad was alleged to be the executant of the mortgage-deeds. The summons issued to the defendants was served personally on Kalka Prasad, but it was affixed to the house of Bhagwat Prasad, who was not found. On the first date fixed for hearing Kalka Prasad appeared and filed his defence. Bhagwat Prasad did not appear and the court recorded an order directing that the case should bi heard against him exparte The case however was not heard on that date, and the hearing was postponed to subsequent date. On that date, Bhagwat Prasad appeared and asked for an adjournment to enable him to file his written statement and to put forward his defence, and to adduce his evidence. This application was refused but the case was for some reason adjourned to another date. On that date Bhagwat Prasad again appeared and asked the court to permit him to file his written statement; and he stated that his witnesses were present in court and he was ready to adduce his evidence. The Court refused to listen to him and to receive his written statement, on the ground that on the first date fixed for hearing he was not present and the court had ordered proceedings to be held exparte against him.
4. This view of the Court of first instance was clearly erroneous and, strangely enough it was accepted by the lower appellate court. No exparte decree had been passed against Bhagwat Prasad. The mere fact that on the first date fixed for hearing he was not present, and the court made an order directing that the suit should proceed against him exparte did not preclude him from appearing on a subsequent date and offering to file his written statement and to produce his witnesses. His application ought to have ben granted and the case ought to have been heard as against him.
5. We allow the appeal, set aside the decree passed against Bhagwat Prasad, and remand the case to the Court of first instance with directions to re-admit the suit as against Bhagwat Prasad and, to try it according to law. Costs here and hitherto will be costs in the cause and will in this court include fees on the higher scale.
6. Appeal allowed.