Kumud Kumar Bose And Others v. Hari Mohan Samadar Opposite Party.

1. In this case, the District Judge has refused to entertain an appeal against an order by which the Court of first instance dismissed for default an application to set aside an ex parte decree in a mortgage suit. The petitioner, who was the defendant in that suit, applied to have the ex parte decree set aside. The application was fixed for disposal on the 7th November, 1914. On that date an application was made on his behalf for adjournment.

2. The Court held that the application was frivolous and refused to grant time: thereupon, the Pleader intimated to the Court that he had no further instructions. The application was accordingly dismissed for default. The petitioner then appealed to the District Judge; the result was that the following order was recorded: “No appeal lies summarily dismissed.” It is clear that under Clause (d) of R. 1 of O. 43 of the Code, the appeal was competent. The order assailed by way of appeal was an order under R. 13 of O. 9; it was immaterial that the application to set aside the ex parte decree had been dismissed, not on the merits, but for default. The District Judge has clearly declined to exercise a jurisdiction vested in him by law.

3. The result is that this Rule is made absolute and the order of the District Judge set aside. The records will be returned to him in order that the appeal may be heard on the merits.

V.B/R.K

4. Rule made absolute.