Judgement Appeal from an order of the High Court (Dec. 23, 1897), setting aside an order of the Subordinate Judge of Benares (Nov. 25, 1896), and remanding the case under s. 562 of the Civil Procedure Code, to be disposed of on the merits. The order of the Subordinate Judge disallowed with costs an application made by the respondent to set aside a decree which had been made against him on the ground that it had been made ex parte. The application was made under s. 108, Civil Procedure Code. The ground for refusing this application was that the decree was not ex parte, and therefore s. 108 did not apply. In his judgment the Subordinate Judge recorded that " the 19th March, 1896, on which the decree in question was passed, was fixed, to the knowledge of the pleaders for both parties, for the purpose of the production of evidence on the issues framed. These issues had been framed with reference to the plaint and the written statement filed on defendants behalf on the 17th May, 1895 and 19th March, 1896; but the case was postponed before 19th March, from time to time, either by reason of the application of defendants pleader praying for the postponement on account of his being busy elsewhere, or by reason of the record of the suit not having come back from Jaunpur, where it had been sent on requisition. The postponement took place on the 31st January, 1896, on which an Order was passed that the case should come on for decision on the 19th March, 1896, and that the parties with their witnesses should appear on that date, due notice thereof admittedly having been given to pleaders. That day having arrived the pleader for the applicant stated that he could not conduct the case and he had received no instructions from his client. Thereupon the Court proceeded to try the case, and tried and decided the issues on the evidence adduced on plaintiffs behalf and decreed the suit against the applicant. That day having arrived the pleader for the applicant stated that he could not conduct the case and he had received no instructions from his client. Thereupon the Court proceeded to try the case, and tried and decided the issues on the evidence adduced on plaintiffs behalf and decreed the suit against the applicant. Now, taking these circumstances into consideration, and also the fact that applicants pleader as well as that of the plaintiff had in the beginning applied for time to enable him to produce precedents, I hold that the defendants pleader, who refused to conduct the case on the 19th March, 1896, was not without instructions; and that his appearance in Court, therefore, was an appearance of his client (the applicant). ... I may also remark that notice to a pleader of the date fixed is as good as a notice to his client in person. Hence the decree was not ex parte, and no application lies under s. 108, Civil Procedure Code." The High Court set aside this order, holding that the decree was ex parte, and remanded the case under s. 562, to be disposed of on the merits. They said "It appears to us that the decision of this Court in Bhagwan Dai v. Hira (( 1897) Ind. L.R. 19 Allah. 355.), and of the High Court at Calcutta in Jonardan Dobey v. Ramdhone Singh (( 1896) Ind. L. R. 23 Calc. 738.), are authorities in favour of the contention of the appellant that an application lay in this case under s. 108 of Act No. XIV. of 1882. On the other hand, we have been pressed by the lRamed counsel for the plaintiff decree-holder with the decision of their Lordships of the Privy Council in Sahibzada Zein-ul-abdin Khan v. Sahibzada Ahmed Raza Khan. (( 1878) L. R. 5 Ind. Ap. 233; S.C. Ind. L. R. 2 Allah. 67.) The procedure which the Subordinate Judge must in our opinion have adopted, was that under s. 157 of Act XIV. of 1882. That section makes applicable, so far as may be, to cases coming within the section, the procedure of Chapter VII. of the Code. Sect. Ap. 233; S.C. Ind. L. R. 2 Allah. 67.) The procedure which the Subordinate Judge must in our opinion have adopted, was that under s. 157 of Act XIV. of 1882. That section makes applicable, so far as may be, to cases coming within the section, the procedure of Chapter VII. of the Code. Sect. 157 apparently relates to a later period in the litigation than the sections which are to be found in Chapter VII., but there is no difficulty in ascertaining the rule to be followed in cases under s. 157 by reference to Chapter VII. It has been contended for the plaintiff decree-holder, that the effect of the decision of their Lordships of the Privy Council in Sahibzada Zein-ul-abdin Khan v. Sahibzada Ahmed Raza Khan (L. R. 6 Ind. Ap. 233.) is, that there can be no decree which can be called a decree ex parte against a defendant who has, at any time and on any occasion before the decree is made, put in an appearance in the suit, although at the hearing he may have been absent and unrepresented, or may have had present merely a pleader who had no instructions. In our opinion the decision of their Lordships of the Privy Council merely referred to the opening paragraph of s. 119 of Act No. VIII. of 1859. That section itself shews quite clearly that there can be ex parte decrees against defendants, whether or not they have put in appearances in the suit. The prohibition of an appeal in the earlier part of s. 119 is limited, to apply the decision of their Lordships of the Privy Council, to a case in which the defendant had not put in any appearance at all. In our opinion the decision of their Lordships of the Privy Council has no bearing on the case before us here." Upjohn, Q.C., and Ross, for the appellant, contended that the decree of the Subordinate Judge, dated March 19, 1896, was not an ex parte decree within the meaning of s. 108 of Act XIV. of 1882, and therefore that it could not be set aside under that section. The defendant was present through his pleader when the decree was made. The day was fixed to the knowledge of both parties. It had been postponed on the application of the defendants pleader. of 1882, and therefore that it could not be set aside under that section. The defendant was present through his pleader when the decree was made. The day was fixed to the knowledge of both parties. It had been postponed on the application of the defendants pleader. Under these circumstances the presence of the pleader was the presence of the defendant. Sect. 108 could not apply, for the decree was not ex parte, the summons had been served, the defendant was not prevented from appearing by any cause sufficient or insufficient, for he did appear. The decree itself had never been appealed from and was final, and it could not be set aside under s. 108. Phillips, for the respondent, contended that the order of the High Court was not an appealable order, since it was not a final one see ss. 594, 595 (a). As an interlocutory order it merely directed the lower Court to try the matters in suit on the merits. It held rightly that the decree of March 19, 1896, was not ex parte, with the result that the Subordinate Judge was bound to adjudicate under s. 108, whether there was ground for setting it aside. There was no finality about an order of that kind; it merely directed the judge of the lower Court to exercise his jurisdiction and adjudicate upon the case on the footing that his decree already made was an ex parte one. Until he had done so the appellant had not exhausted his remedies in the Court below. It was still open to him to shew—(1.) that there was no ground for setting aside his decree; (2.) that the decree was right upon the merits. Ross replied. The judgment of their Lordships was delivered by LORD ROBERTSON. To this appeal from the High Court of Judicature for the North-Western Provinces, Allahabad, it is objected by the respondent that no appeal to Her Majesty in Council lies against the order complained of. For the due understanding of the question thus raised it is necessary briefly to trace the procedure in the suit. The suit was brought on March 10, 1892, before the Sub ordinate Judge at Benares, for the recovery of money alleged to be due under two bonds, executed by a person of whom the defendant Shankar Dat Dube was the legal representative. The suit was brought on March 10, 1892, before the Sub ordinate Judge at Benares, for the recovery of money alleged to be due under two bonds, executed by a person of whom the defendant Shankar Dat Dube was the legal representative. That defendant is now deceased, and is represented by the respondent. He appeared in the suit, and on May 17, 1895, filed a written statement with a list of documents. Into the nature of the questions raised by the plaint and the written statement it is unnecessary to enter, as the questions before their Lordships arise solely out of the part taken by the defendant at a certain stage of the procedure. It is sufficient to note that the issues settled between the appellant and Shankar Dat Dube were—(1.) Has the plaint been amended according to law? (2.) Is defendant No. 1 (Shankar Dat Dube) the heir of Rajah Harihar Dat ? (3.) Is the deed of mortgage legally valid? Could Harihar Dat duly legally hypothecate the property? (4.) Is the deed of mortgage genuine? A fifth issue was settled, but it did not affect Shankar Dat Dube, but only certain other defendants. Prior to March 19, 1896, the case had repeatedly been before the Court, but had from time to time been postponed; and on January 31, 1896, an order was passed that the case should come on for decision on March 19, 1896. On each of these occasions the defendant Shankar Dat Dube was represented by a pleader. On March 19, 1896, it is recorded by the Presiding Judge that " Defendant No. 1 is to-day absent. No one appears for him. His pleader informs the Court that he has no instructions to proceed with the case." The Court proceeded as in his absence, heard evidence for the plaintiff, and decided the issues, giving decree for the claim with costs. On April 9, 1896, Shankar Dat Dube applied to the Court under s. 108 of the Civil Procedure Code to set aside this decree, on the ground that neither the defendant, applicant nor his general attorney had notice of the date fixed, and that for this reason he could not conduct the suit. The appellant filed a reply denying that the 108th section applied, and asserting that the defendant had notice. The appellant filed a reply denying that the 108th section applied, and asserting that the defendant had notice. The application came before a different judge from Nil Madhab Roy, who had presided on March 19, 1896. The new judge, notwithstanding that his predecessor had recorded that the defendant in question was absent, that no one appeared for him, and that his pleader informed the Court that he had no instruction to proceed with the case, forthwith disallowed the application with costs. No opportunity was given to the applicant to satisfy the Court in terms of s. 108 that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the theory of the decision being that the applicant had in fact appeared, and that the decree was therefore not ex parte. Against this order an appeal was taken to the High Court at Allahabad, who allowed the appeal and pronounced the order now appealed against. The terms of the order are as follows ; "disordered that this appeal be allowed; that the order of the Subordinate Judge of Benares be set aside; and that the case be and it hereby is remanded under s. 562 of the Code of Civil Procedure to the Court of the said Subordinate Judge to be disposed of on the merits." The-appellant represents that by this order the High Court have set aside the decree of March 19, 1896, and have remanded the original suit to be disposed of on the merits. The respondent disclaims for the order any such sweeping effect, and holds that what is remanded is1 merely the applica tion immediately before the Court, to wit, the application to set aside the decree, and that it is this application which the Subordinate Judge will, under the remand, proceed to dispose of by allowing the respondent to endeavour to satisfy him of the conditions specified in s. 108, and then, if this be done, by setting aside the decree. Their Lordships are clearly of opinion that the respondents is the just construction of the order of the High Court. Their Lordships are clearly of opinion that the respondents is the just construction of the order of the High Court. The application by the respondent to set aside the decree might be described as " the case " with at least as much accuracy as the original suit, in which there was a standing decree ; and unless and until that decree has been set aside, there was no means of remanding that suit. The form of the records is inconsistent with the appellants view. The judgment of the High Court is headed " Case 2 of 1897. First appeal from the order of the Subordinate Judge of Benares dated October 8, 1896," which is the dismissal of the petition under s. 108. And the decree is headed in similar fashion. That then was the " case " with which the High Court was dealing. But further, if there be any ambiguity, it is to be presumed that that was done which the law required ; and it is allowed by both parties and is clear to their Lordships that, assuming the 108th section to apply at all, the proper course was to remand the application to the Subordinate Judge to dispose of that application with due regard to the conditions of the section. There is, however, a further consideration which is conclusive as to the true intendment of the order, for the lRamed judges in their written judgment point out as the error of the Subordinate Judge that he had disposed of the case without considering whether the defendant was prevented by sufficient cause from appearing and maintaining his defence at the hearing on March 19, 1896. Their Lordships would require very clear language in the order which was intended to effectuate this opinion to induce them to construe it in a sense which would stultify the Court pronouncing it. Their Lordships having thus ascertained the true meaning of the order appealed against, the question is whether an appeal lies to Her Majesty in Council, and this depends on whether the order is a final order in the sense of s. 595 {a) as modified by s. 594 of the Civil Procedure Code. Their Lordships having thus ascertained the true meaning of the order appealed against, the question is whether an appeal lies to Her Majesty in Council, and this depends on whether the order is a final order in the sense of s. 595 {a) as modified by s. 594 of the Civil Procedure Code. The mere fact that the High Court, apparently on the assumption that it was such an order, have certified the sufficiency of the amount and value of the suit cannot make appealable an order which does not fulfil the statutory conditions. Now it does not in their Lordships judgment admit of doubt that, assuming the order to have the meaning which they ascribe to it, it is in no sense of the term a final order. It is a purely interlocutory order directing procedure. Accordingly their duty is to advise Her Majesty to dismiss the appeal. Precluded as they would therefore be from proceeding to examine the merits of the order, their Lordships do not regret that in the course of ascertaining its true construction they have necessarily had to consider the law applicable to the case, and to pronounce that no other order would Law. Rep. 28 Ind. App. 15 ( 1900- 1901) Mujibunnissa V. Abdul Rahim 122 have beta appropriate save that which they find to have been made. The appellant must pay the costs of the appeal.