Scroope, J.This is an appeal from a decision of the Subordinate Judge of Dhanbad, dismissing an application under Order 9, Rule 13 of the CPC to restore a mortgage suit which had been decreed exparte against the Defendant No. 2 Mt. Bodhia who is now the appellant.

2. The suit was decreed exparte on the 5th January 1926, and on the 3rd February, the present appellant filed an application for restoration under Order 9, Rule 13, alleging that on the 5th January the date on which the suit was decreed exparte, she was under treatment in the Medical College at Patna for eye disease, that she had entrusted the conduct of the suit to her son-in-law Sitaram Sao, but that he had made a mistake as to the pleader engaged and instead of giving the petition for time to the pleader engaged in the case, Babu Suresh Chandra Singha, he had made it over to another pleader, Babu Manindra Nath Das and that as the latters vakalatama was not on the record the Court had declined to accept the petition and had decreed the suit exparte. The application under Order 9, Rule 18 was registered on the 3rd February, 1926 and the 13th March was fixed for hearing.

3. On that date the opposite party had appeared and were ready yet the case was adjourned on the petitioners application to the 27th March for hearing and the parties were directed to come ready on that date. On the 22nd March the petitioner prayed for the examination of a witness Dr. Khan of Patna on commission. This was heard on the next day 23rd March but was disallowed on the objection of the opposite party. Application was then made for summons on her witnesses; these were ordered to be issued at her own risk. On the 27th March the case was next taken up but petitioner again applied for issue of summonses on her witnesses who had not yet been served but the Court disallowed the prayer and dismissed the application.

4. The petitioner Bodhia has now appealed to this Court and a preliminary objection is taken that no appeal lies; it is urged that Order 43, Rule 1(d) which allows an appeal from an order dismissing an application under Order 9, Rule 13 applies only where there has been an actual hearing of the application and that in this case there was no actual hearing of the application which was dismissed for default.

5. But there is direct authority in the case of Kumud Kumar Bose v. Hari Mohan Samaddar [1915] 21 C.L.J. 628 for holding that an appeal lies under Order 43, Rule 1(d) against an order dismissing for default an application toset aside an exparte decree and the learned vakil for the respondent has not shown any authority for discriminating for the purpose of Order 43, Rule 1(d) in this way between a dismissal on the merits and a dismissal for default. This contention therefore cannot succeed.

6. As regards the merits of the appeal there is no getting away from the fact that on the 13th March there was a direction of the Court that the parties must come ready by the 27th March and that it was only on the 22nd March that the application for the examination of Dr. Khan on commission was made. The appellant must have known hat there was no possible chance of getting a commission executed at such short notice, and I do not see any substance in the argument put forward that at least the Court might have set out the commission and allowed it to take its chance. Obviously there was no chance of its being executed. Besides after the refusal to issue the writ of commission, there was no reason why the appellant should not have had her pleader Suresh Chandra Singh examined on her behalf as the real ground for the rehearing application was that her son-in-law had made a mistake and had gone to the wrong pleader. No application was made at any stage to examine either pleader.

7. Further the application which was filed on the 23rd March for the examination of witnesses shows that three were Jharia witnesses and there is nothing to show why the application could not have been made before to examine these three witnesses. Another feature is that the appellant on her own showing had entrusted the management of the case to her son -in-law on the 5bh January, 1926. It is not suggested that he ever offered himself for examination in the rehearing matter. He must have known all the facts and was the person really in charge of the case yet no attempt was made to have him examined. There is no doubt that the appellant put off till the eleventhhour any real effort to take steps to support her restoration petition by evidence and if she has now suffered for if, it is her own fault. She was certainly guilty of laches in the matter and, on the materials before me, I would say that the learned Subordinate Judge had no alternative but to dismiss the rehearing application for default and I can sea no reason for disturbing that decision.

8. The appeal accordingly fails and is dismissed with costs.

Adami, J,

I agree.