Sufficient cause must be shown for a party's absence on the date of ex parte hearing in order to set aside an ex parte decree.

JUDGMENT :

P. K. Misra, J. - The defendants have filed this appeal under the following circumstances :

Plaintiff-respondent had filed T. M. S. No. 228/78 against the present appellants for realisation of certain amount. In the said suit, the appellants after having filed "their written statement were absent on 22-10.1987. The trial court set the defendants ex parte by order dated 22-1O-1987 and posted the suit for ex parte hearing on 23-11.1987. However, the defendants subsequently filed an application for setting aside the ex parte order. While the matter stood thus, on 23-11-1987 the suit itself was dismissed for default due to absence of the plaintiff. Thereafter, the plaintiff-respondent filed Misc. Case No. 64 of 198.7 for restoration of the suit. Even though the trial court found that the cause shown by the plaintiff for absence was not sufficient, it directed for restoration, of the suit subject to payment of cost of Rs. 100/- by its order dated 3-9- 1993 and ultimately cost was paid on 17-9-1993. In view of payment of such cost the trial court restored the suit and directed that the suit shall be taken up for ex parte hearing. On the subsequent dates, the defendants remained absent arid ultimately on 12-10-1993, the suit was taken up for ex parte hearing and decreed ex parte. Thereafter, the present appellants filed Misc. Case No. 53/94 under Order 9, Rule 13 read with section 151 of the CPC (in short, the "C. P. C.") for setting aside the ex parte decree along with a petition for condonation of delay on 2-9-1994. Objection was filed on behalf of the present respondent. The trial court ultimately held that no sufficient cause had been shown for condonation of delay, nor any sufficient cause had been shown for absence of the defendants on the date on which the suit was taken up for ex parte hearing. Hence, the present appeal.

2. In the petition under Order 9, Rule 13, C. P. C., the main contention of the appellants was relating to the untenability of the earlier order of the trial court dated 3-9-1993, whereunder the application of the plaintiff for restoration of the suit had been allowed. It was contended before the trial court and repeated in this Court that the trial court on the earlier occasion had no jurisdiction to set aside the order relating to dismissal of the suit, as the trial court itself found that sufficient cause had not been established.

Such contention has been rightly negatived by the trial court. The order dated 3-9-1993 had not been challenged by the appellants. As a matter of fact, subsequently the Associate Counsel of Shri P. K. Ray who was appearing for the defendants had accepted the court. It is not disputed by the defendants that the cost had been accepted on their behalf. Having accepted the cost, the defendants cannot question the legality of the order dated 3-9-1993 and that too in a collateral proceeding.

3. In the petition for condonation of' delay, it was indicated that Shri P. K. Ray, Advocate, appearing for the defendants was suffering from various ailments and as such steps could not be taken. In view of the statement of the counsel himself examined as p. w. I, it should be accepted that, in fact, Shri P. K. Ray was ailing. That however, cannot constitute sufficient cause for the defendants not to take any steps in the suit, as they could have taken steps through the junior of Shri P. K. Ray, or by engaging any other Advocate. In the petition under Order 9, Rule 13, it is nowhere stated that the defendants remainded absent due to illness of their counsel.

4. The learned counsel for the appellants contended that the earlier order of the trial court setting the defendants ex parte had merged with the order of restoration dated 3-9-1993 and as such the trial court committed an illegality by posting the suit for ex parte hearing by its subsequent order dated 17-9-1993. In this connection it is also contended that the defendants had already filed an application for setting aside the ex parte or