Hira vs Bhagwan Dai and Another

John Edge, Kt., C.J. and Blair, J.—The Subordinate Judge proceeded ex parte and made a decree. His procedure really was u/s 157 of the Code of Civil Procedure. An application was made to him u/s 108 of the Code to set aside the decree on the ground that there was "sufficient cause" which prevented the defendant from appearing when the suit was called on for hearing after an adjournment. The Subordinate Judge set aside the decree in compliance with the application. This appeal has been brought from that order. The appellants contend that Section 108 did not apply, and that the defendant''s remedy (if any) was by way of appeal. On the other hand the defendant-respondent contends that Section 108 did apply, and this appeal did not lie.

When a Court acts u/s 157 of the Code it has to apply the procedure of Chapter VII. Part of the procedure pertinent to such a case is the procedure of Section 108. In our opinion Section 108 applied, and, as no appeal is given from an order allowing an application u/s 108, this appeal does not lie. We are supported in this view by a decision of the Full Bench of the Calcutta Court in Jonardan Dobey v. Ramdhone Singh ILR 23 Cal. 738. We dismiss this appeal with costs.