JUDGMENT

W. Comer Petheram, C.J. - The question raised in this reference is whether a decree passed in a suit to which the defendant has appeared and defended, but was not present or represented at the concluding portion of the hearing is an ex parte decree within the meaning of Section 108 of the Civil Procedure Code.

2. I do not think the point by any means clear, but as the words used in the section are capable of the wider meaning, I do not feel constrained to differ from the rest of the Court upon it and agree to the answer to the question which they propose to give.

O'Kinealy, J.

3. In this case the plaintiff brought a suit in the Court below against three defendants for possession of land, the plaint was filed, and the 10th of August fixed to settle the issues. On this day one only of the defendants appeared and asked for time and got twenty-seven days. Time was granted, and the Court directed the parties to appear on the 6th September. I take the order from the order sheet. None of the defendants appeared on the 6th of September, and the Court gave judgment in favour of the plaintiff in the following terms:

Plaintiff present, defendants absent, though they appeared on a former date. Suit decreed ex parte with costs.

4. It is clear that the Judicial Officer was of opinion that the three defendants had already appeared when he passed this decision.

5. On the 12th September the defendant who had previously appeared applied u/s 108 of the CPC for an order setting aside the decree on the ground that he was unable to appear on the day fixed for "the adjourned hearing of the case owing to the serious illness of his son. The application was granted by the Court below, and the plaintiff applied to this Court for, and obtained, a rule for setting aside the order of the Court below on the ground that Section 108 applies only to cases in which the defendant has never appeared and is inapplicable to the present case in which the defendant had once entered appearance.

6. In this state of circumstances a Divisional Bench of this Court has referred the following questions to a Full Bench:

First.-Whether Section 108 of the CPC (Act XIV of 1882) applies to every case in which a decree is passed ex parte against a defendant either u/s 100 by reason of his non-appearance at the first hearing or u/s 157 by reason of his non-appearance at an adjourned hearing, or whether it is limited in its application to cases of the first mentioned description?

Second.-Whether Section 108 of the CPC applies to a case in which a decree is made ex parte against a defendant, who appeared on the day fixed for the first hearing, and merely applied for and obtained an adjournment of the case, but failed to appear at the adjourned hearing?

7. The facts of the case, as stated by the Judges who made the reference, show that the defendant appeared on the day fixed for the first hearing and applied for and obtained an adjournment of the case, but failed to appear at the adjourned hearing. The only question, therefore, that arises for disposal in this rule on the facts stated in the reference is that stated in the second question. The more general question which has been placed first does not appear to me to arise upon the facts in this case, and I am therefore unable to give judgment upon it. No doubt it may be that in the course of discussing the second question I shall be compelled to indicate more or less my opinion upon the first, but as such opinion would be far beyond the scope of the present reference, I hesitate to answer it expressly.

8. The case has been argued on the effect of several decisions under the previous Codes and other Acts. Considering the changes which have taken place in this portion of the Code, I think this manner of interpreting it is not wholly satisfactory.

9. Therefore, before dealing with the point raised in the reference, I think I should refer to the case of Norendra Nath Sircar v. Kamalbasini Dasi L.R. 23 IndAp 27 : ILR 23 Cal. 563 decided by