JUDGMENT

Mackney, J - In Civil Regular Suit No. 58 of 1933 of the Subdivisional Court of Pegu, A.L.V.R.P. Chettiar Firm, the present applicant, obtained an ex parte decree against the respondent Minachi Ammal on 20th October 1933. On 30th October 1933, the respondent filed an application asking that the ex parte decree be set aside. Notice for the appearance of the other side on 9th November 1933, was issued and on that date the parties being present, 24th November 1933, was fixed for hearing of the application. On that date, the present respondent, that is the then applicant, failed to appear although her advocate appeared. Her witnesses also did not appear having been unserved. Minachi Animal's pleader asked for an adjournment on the ground that Minachi Ammal was ill and the witnesses were unserved. The application was opposed by the other side. The learned Subdivisional Judge was not satisfied that Minachi Ammal had sufficient reason for not appearing, and he also noticed that summonses for the witnesses were applied for only on 16th November 1933.

2. He therefore refused to grant an adjournment. Minachi Animal's pleader then withdrew from the case and the learned Subdivisional Judge recorded the order "As Minachi Ammal is absent the application is dismissed with costs." Against this order Minachi Ammal appealed to the District Court of Pegu in Civil Misc. Appeal No. 61 of 1933. The Court held that the order of dismissal was a decree and was appealable as a decree. It referred to the decision of Ma Ghon v. Maung Myint A.I.R. 1927 Rang. 148. It further held that the learned Subdivisional Judge should not have dismissed the application as there was nothing to show that Minachi Ammal was in any way to blame for the failure of the witnesses to appear. It accordingly set aside the order of the Subdivisional Court and directed that the application be restored and that the Subdivisional Court should proceed to determine it. Against this order the applicant, the original plaintiff, has now applied in revision on the ground that the District Court exercised a jurisdiction not vested in it by law inasmuch as no appeal lay from the order passed by the Subdivisional Court of Pegu dated. 24th November 1933, and further that the lower appellate Court acted in the exercise of its jurisdiction, if any, illegally or with material irregularity. As regards the first ground, there seems to me to be some misunderstanding. Whatever the reason for the dismissal of Minachi Animal's application, whether it were for default of appearance or whether it were under Order 15, Rule 4, the fact remains that the application was dismissed. Order 43, Rule 1, Clause (d), provides that an appeal shall lie from an order under Rule 13, Order 9 rejecting an application for an order to set aside a decree passed ex parte. It was therefore under this provision of law that an appeal lay and not because the order of the Subdivisional Judge was a decree (which I may say, I think it was not.)

3. It is next to be considered whether the learned District Judge has acted in the exercise of his jurisdiction illegally or with material irregularity. The learned District Judge took the view that Minachi Ammal had actually taken steps to cause the attendance of her witnesses and that there was nothing to show that she was in any way to blame for their failure to appear. In so holding I cannot see how it can be held that the learned District Judge exercised his jurisdiction illegally or with material irregularity. It is really entirely a matter of opinion. The learned Sub-divisional Judge thought that Minachi Ammal ought to have applied earlier than 16th November to cause the attendance of her witnesses; the learned District Judge thought in applying only on 16th November Minachi Ammal could not be said to have acted without due diligence, and this may well be a matter of opinion. In any case it seems to me that the adjournment of 15 days was so short that there was hardly time to g