( 1 ) THIS is a defendants appeal. The suit was for the recovery of Rs. 26,738/ -. There were several defendants. The present appellants were defendants Nos. 3 and 4. We are not concerned at present with the other defendants. The appellants were duly served with summonses. They had filed their written statements. Issues had been framed on the basis of their written statements and the ease came up for hearing on the 25th of August, 1949. On that date the appellants were absent and their counsel stated that he had no instructions. The case was, therefore directed to proceed ex parte againt the appellants. The plaintiff examined one witness in support of his case against these appellants. The suit was decreed ex parte against them. Subsequently the appellants applied for the setting aside of the ex parte decree against them. As they showed sufficient cause for absence on the 25th of August 1949 the date on which the ex parte decree had been passed, their request was accepted, the ex parte decree against them was set aside and the suit was restored to its original number so far as they were concerned. The case could not be taken up for some time for various reasons. Ultimately 4th of July, 1951, was fixed as the date for final hearing. On that date the appellants were again absent. An application for adjournment was made on their behalf by their counsel and in support of it a telegram received from the appellants about the death of their daughter-in-law was relied upon. The plaintiff opposed the application for adjournment on the ground that the daughter-in-law had died much earlier. It was contended that the application for adjournment had been made only to harass the plaintiff. An affidavit was also filed by the plaintiff about the date of the daughter-in-laws death. The Court rejected the application lor adjournment. The appellants counsel then state. d that he had no further instructions. The plainiff was then required to prove bis claim and to produce evidence in support of it. The plaintiffs counsel stated that he relied upon the evidence already recorded, i. e. , the statement of the witness who had been examined on the 25th of August. 1949, and that he did not wish to produce any further evidence. Relying on the evidence already recorded, the learned judge decreed the suit against the appellants. He purported to pass a decree on merits and not an ex parte decree. That decree is being challenged by the appellants in the present appeal.

( 2 ) TWO contentions have been pressed in support of the appeal. The first is that an adjournment should have been allowed. The second is that, in any case, there was no material before the learned Civil Judge on the basis of which he could decree the suit against the appellants on merits. The argument is that the only evidence on the record was the statement of the plaintiffs withess recorded on the 25th of August, 1949, and that evidence could not be utilised against the appellants.

( 3 ) THE first ground cannot be accepted for the simple reason that there are no materials before us to show that the appellants had sufficient cause for absence on the 4th of July, 1951, when the case was called up. The telegram that was received only stated that the daughter-in-law had died but it did not mention even the date of thef death. On the other hand, there was the affidavit of the plaintiff than she had died three months earlier. On that material, we think, the learned Civil judge had no option but to refuse the adjournment prayed for.

( 4 ) THE second contention, however, appears to be well founded. It is conceded that the only evidence that was there in support of the plaintiffs claim and on the basis of which the suit has been decreed On merits against the appellants was the statement of a witness Gobardhan who was examined on the 25th of August, 1949, after the suit had been directed to proceed in the absence of the present appellants.

( 5 ) WHEN the earlier ex parte decree again