Ablakh and Another vs Bhagirathi

Oldfield, J.—In this case a decree was passed by the Court of First Instance, dismissing the plaintiffs'' claim by default. The plaintiffs filed an appeal in the Lower Appellate Court, and that Court has dismissed the appeal on the ground that the plaintiffs have no remedy by appeal in this case, but they can proceed only u/s 103 of the Civil Procedure Code, and have the order dismissing the suit for default set aside. The plaintiffs have appealed to this Court, and contend that the Lower Appellate Court could entertain the appeal according to law, I think this appeal must be allowed. It seems doubtful whether the Court of First Instance has, as a matter of fact, disposed of the case u/s 102 of the Civil Procedure Code. But assuming that it did, I think that the plaintiffs had their remedy, not only by proceeding u/s 103 of the Civil Procedure Code, but by appeal also, as Section 103 does not in any way appear to take away such a remedy. The only authority which might be taken to be opposed to this view is a decision of a Full Bench of this Court--Lal Singh v. Kunjan I. L. R All 387. But that decision deals with the case of a defendant against whom an exparte decree has been made, and I am not prepared to accept it as binding in the case before us. In view of a later decision of a Full Bench of this Court,--Ajudhia Prasad v. Balmukand I. L. R All. 354 I think I am justified in holding that an appeal to the Lower Appellate Court would lie. I therefore set aside the decree of the Lower Appellate Court, and direct it to restore the case and try it on the merits. Costs to follow the result.

Tyrrell, J.

I concur in the above view and order, and it seems to me that the suit may have been dismissed u/s 155 of the Civil Procedure Code, and therefore there are still stronger reasons for holding that the plaintiffs had their remedy by way of appeal. A ruling of this Court in Partab Rai v. Ram Kishen 1883 WN 171, decided by Straight, J. and myself, is in point in this respect.