W. Comer Petheram, C.J., Prinsep and Norris, JJ.@mdashThis is a reference made by the Second Judge of the Small Cause Court of Calcutta u/s 617, Code of Civil Procedure. In a suit before that Court the defendant appeared, and on his application the trial was adjourned. It is unnecessary to describe the course of the suit further than to state that on the 30th of June, when the case was fixed for trial, the defendant did not appear, and that after witnesses had been examined on behalf of the plaintiff, the claim was decreed. The point now referred to us is whether, on the application of the defendant, this matter can be dealt with u/s 108 of the Code, so as to set aside the decree passed on the 30th of June as an ex parte decree and to proceed with the trial. Objection might be taken to the manner in which this reference has been made. It is sufficient to say that no objection was pressed before us, and consequently we are prepared to express our opinion on the case submitted.
2. The order of the Judge was undoubtedly passed u/s 157 of the Code, for, on the date to which the hearing of the suit was adjourned, the defendant "failed to appear" and "the Court proceeded to dispose of the suit in one of the modes directed on that behalf by Chapter VII of the Code," that is, by an order u/s 100 giving the plaintiff a decree on the evidence tendered by him. The only question is whether, by reason of the Judge proceeding to dispose of the case u/s 100 the defendant is entitled to the benefit of Section 108 in the manner provided for decrees passed ex parte against such a party. I am of opinion that the reference to Chapter VII, made in Section 157, does not alter the character of the case so as to make an order passed in the absence of the defendant an ex parte decree, and thus to enable the defendant to obtain the benefit of Section 108. The reference to Chapter VII seems to me merely to indicate the procedure of the Court, and not to give a defendant the privilege to which he is entitled if the suit was decided ex parte strictly within the terms of Section 100. There is a distinction made by the Code between cases decided ex parte in the absence of one of the parties at the first hearing and cases decided in the absence of one of the parties at an adjourned hearing. Chapter VII relates to the appearance of parties and the consequence of their non-appearance at the first hearing, whereas Chapter XIII, of which Section 157 forms a part, contains the procedure for the trial of a suit on an adjournment after the first hearing. In this suit the defendant did make an appearance at the first hearing, and therefore Chapter VII would not apply, except in so far as Section 157 provides that the Court may exercise a discretion in disposing of the suit as directed in Chapter VII, should the defendant fail to appear on the day to which the trial may have been adjourned. The case of Zainulabdin Khan v. Ahmad Raza Khan I.L.R All. 67 : IL.R. 5 IndAp 233, decided by their Lordships of the Privy Council, points out the distinction between a case decided ex parte in the absence of one of the parties at the first hearing and a case like that before us decided in the absence of a defendant on the date to which the hearing of the suit may have been adjourned. The only remedy for a defendant in such a case is, as pointed out by their Lordships, by an appeal, should an appeal lie from a decree in the suit or, it may be added, as in the present suit, where no appeal lies from a decree of the Small Cause Court of Calcutta, by an application for a new trial u/s 37 of the Presidency Small Cause Court Act, 1882. I would therefore, in reply to the reference made, state that the application before the Judge u/s 108 should be dismissed.
