Deoki Nandan, J.@mdashThis is a defendant''s Second Appeal from an ex parte decree passed by the trial Court and confirmed on first appeal by the Lower Appellate Court. The ex parte decree was passed by the trial Court after the defendant-appellant''s counsel, Mr. Ganga Ram Talwar, had reported "no instructions" and did not participate in the further hearing, although he remained present in the Court. The defendant-appellant''s husband, who was her pairokar, was also present, but took no steps for the further defence of the case, although the trial Court did also grant some short time to him to properly instruct some counsel.
2. The complaint of the learned counsel for the appellant is that after Sri Ganga Ram Talwar had reported "no instructions", the trial Court could only proceed under Rule 2 of Order 17 of the Civil P. C., that is to say in one of the modes prescribed by Order 9, but the operative portion of the decree passed by the trial Court says that the suit was being decreed against the defendant appellant, who was defendant No. 5, on contest and was being decreed against the other defendants ex parte. No application for setting aside of the ex parte decree was made under Order 9, Rule 13 of the Civil P. C. Instead an appeal was filed u/s 96 of the Civil P. C. The learned Judge of the Lower Appellate Court has held that the appellant cannot be deemed to have been absent inasmuch as her husband was present and also inasmuch as her counsel also continued to remain present. Mr. S. P. Mehrolra, learned counsel, invited my attention to Rules 1 and 2 of Order 3 of the Civil P. C. and submitted that the presence of the appellant''s husband was not the presence of a recognized agent, inasmuch as there was no power of attorney authorising her husband to appear and to act on her behalf. It does appear that the Lower Appellate Court was in error in thinking that simply because the husband was the appellant''s pairokar, she could be deemed to be present through him although he was not authorised to act by a power of attorney.
3. So far as Sri Ganga Ram Talwar is concerned, there was a vakalatnama in his favour and he was undoubtedly authorised to appear, act and plead on behalf of the defendant-appellant. He did not apply for withdrawal from the case and under sub-rule (2) of Rule 4 of Order 3 of the Civil P. C., his power to represent, that is to say, to appear, act and plead on behalf of the defendant-appellant in Court, must be deemed to have continued. However, Mr. S. P. Mehrotra invited my attention to a decision of the East Punjab High Court in
4. As an appeal from the decree, on the merits of the case, u/s 96 of the Civil P. C., nothing was urged before the Lower Appellate Court to show that the judgment of the trial Court suffered from any error.
5. There is no merit whatsoever in this Second Appeal. It is accordingly dismissed under Order 41, Rule 11, Civil P. C.
