SALIL KUMAR HAZRA, J.

( 1 ) THIS is an application by the defendant Arun Kumar Mustaphy to set aside the ex parte decree dated May 20. 1975. The decree was for Rs. 1,140/-with interest and cost passed by this Court in a suit for money lent and advanced by the plaintiff Smt. Mira Devi Chowhan to the defendant.

( 2 ) THE case of the plaintiff is that on August 28, 1971, the defendant borrowed from the plaintiff Rs. 1,000/- for the purpose of his business and agreed to repay the same within 90 days from the date of the loan. As a security for due repayment of the loan, a hundi was executed in favour of the plaintiff. The hundi was drawn by the defendant Arun Kumar Mustaphy for Leather Export Union. Arun Kumar Mustaphy himself accepted the hundi. Further case of the plaintiff is that the defendant Arun Kumar Mustaphy held himself out as the sole proprietor of the business carried under the name and style of Leather Export Union. The defendant Arun Kumar Mustaphy filed his written statement. His defence, inter alia, is that he did not execute the Hundi in his personal capacity and he is not personally liable as his father is the sole proprietor of the firm "leather Export Union. "

( 3 ) THIS suit appeared in the peremptory list for hearing before this court on May 16. 1975, marked as liquidated claim. Thereafter the suit again appeared in the peremptory list on May 19, 1975 as liquidated claim. The Suit appeared on May 20, 1975, in the peremptory list again as liquidated claim. Nobody appeared for the defendant on any of the days when the suit appeared in the peremptory list. On May 20, 1975. the suit was called on for hearing. As no one appeared for the defendant on any of the days and the counsel for the plaintiff submitted that there is no real defence to the suit, I heard the suit. The plaintiff proved his claim and ex parte decree was passed on that day.

( 4 ) THIS notice of motion has been taken out on behalf of the defendant on June 5. 1975. by his Supreme Court Advocate Mr. R. L. Tarafdar for setting aside the said ex parte decree. The petitioner Arun Kumar Mustaphy, states in his petition affirmed on May 27. 1975, that he never held out to be a sole proprietor of the business- "leather Export Union". He is a mere agent of his father Amulya Gati Mustaphy who is the sole proprietor of the business. So he did not borrow any sum of money from the plaintiff for his own business nor incur any liability to repay the money to the plaintiff. In the petition, there is no denial that its defendant did not execute the hundi. There is also no denial that he did not accept the same.

( 5 ) THE case of the petitioner as stated in his petition is further as follows: On May 19, 1975, the Supreme Court Advocate for the petitioner Mr, R. L. Tarafdar after coming to court came to know on perusal of the daily cause list that the suit suddenly appeared on that day in the peremptory list under liquidated claim. Then he wrote a post-card to the petitioner informing him about the appearance of the suit in the daily cause list and "he was under the impression that until several part-heard suits at the top of the list were heard, the above suit will not be taken up for hearing". On May 20, 1975. Mr. Tarafdar came to Court to find out the condition of the list of cases and found that the suit appeared in the list in the same position as in the previous day and "did not think it necessary to mention the above suit for adjournment on the ground that he could not contact his client until that day. " Then it is stated that Mr. Tarafdar "was under the wrong impression that the above suit and other suits appearing above the same would not be taken up for hearing until the hearing of the part-heard suits concluded. " The case of the petitioner is that on May 24, 1975 he was surprised to receive a letter written by the plaintiff informing him that the suit was decreed ex parte on May 20. 1975 in the absence of the petitioner and his Advocate. It is furthe

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