Satish Chandra Mukerjee Petitioner, v. Apara Prosad Mukerjee And Ors. Opposite Party,

Maclean, C.J:— I entertain no doubt as to the manner in which the questions submitted to us ought to be answered. I was a part to the decision in which we dealt with this question in the case of Cooke v. The Equitable Coal Co.. Nothing I have heard this morning induces me to resile from the view I then expressed. All the authorities upon the matter have been very carefully collected and dealt with by one of the learned Judges who made the present reference and, his opinion, in fact the opinion of both the referring Judges—is in support of the view I am now about to express.

The first question is “whether an application by a counsel or pleader who is instructed only to apply for an adjournment, which is refused, is an appearance within the meaning of the Code?” The language of sec. 556 is “attend” and not “appear” but for present purposes I think the terms are practically, synonymous. I answer that question in the negative.

The second question is “when in such circumstances an appeal is dismissed, whether the dismissal is one for default under sec. 556, so as to entitle the Appellant to apply for re-admission under sec. 558, Civil Procedure Code.” I answer that question in the affirmative.

The last question is “whether the case of Watson & Co. v. Ambica Dasi (2). has been rightly decided.” I answer that question in the negative.

We must send the case back to the referring Bench with this expression of our opinion.

The Appellant will have the costs' of this hearing before the Full Bench, which we assess at three gold mohurs.

Harington, J.— I agree. I do not see how a pleader can be said to attend on the hearing, merely because, before the hearing begins, he comes and asks the Court that there may be no hearing. The hearing does not begin till his application is disposed of.

Brett, J.— I agree in answering the questions in the manner laid down by the learned Chief Justice.

Mitra, J.— I also agree.

Geidt, J.— I also agree.

N.G