Judgement This was a petition by the respondents to the above appeal (No. 48 of 1940) to set aside the judgment of the Board, delivered on December 14, 1942, on an ex parte hearing of the appeal, and for a re-hearing of the appeal. The petition stated (inter alia) that on February 24, 1921, the petitioners or their predecessors executed a mortgage in favour of the appellant for a sum of Rs. 1,25,000 and interest thereon at the rate of 8 per cent, per annum with yearly rests. The mortgage contained a personal covenant to repay. On February 24, 1930, the appellant instituted a suit in the court of the first class Subordinate Judge of Ahmedabad for enforcement of the mortgage, and on July 6, 1932, a decree was made by consent in terms of a compromise between the parties which stipulated the terms and conditions of repayment of the sum then due to the appellant by the respondents (petitioners). The petitioners failed to pay anything, and after correspondence between the parties the appellant, on February 16, 1934, filed an application for execution in respect of the full amount of the decree, with interest. The Subordinate Judge who heard the application held that a clause in the compromise decree entitling the appellant to recover the full sum in case of default was not a penal one and was enforceable, and that the appellant was not in default; he ordered execution to proceed for Rs. 2,51,150 and costs. On appeal to the High Court at Bombay Divatia J. took the same view as the Subordinate Judge and dismissed the appeal. On a further letters patent appeal Macklin and Sen JJ. held that the default was that of the appellant, and they allowed the appeal and dismissed the application for execution. Thereafter the appellant obtained a certificate of appeal to His Majesty in Council. The petition then set out facts which, the petitioners alleged, showed that there had been no negligence on their part so far as representation on their behalf before the Board was concerned, and that it was due to circumstances entirely beyond their control that they were not represented and the case was heard by the Board ex parte. By their judgment of December 14, 1942, the Board had allowed the appellants appeal. The Order in Council had not been issued when the petition was lodged. By their judgment of December 14, 1942, the Board had allowed the appellants appeal. The Order in Council had not been issued when the petition was lodged. The petitioners prayed for a re-hearing of the appeal. 1943. Nov. 30. Sir Thomas Strangman K.C. and R. J. T. Gibson for the petitioners. J. M. Parikh and Krishna Menon for the respondents. [Reference was made to the Civil Procedure Code, Or. ix., r. 13 ; and Or. xli., r. 21 ; and to Ram Narayan Singh v. Adhindra Nath Mukerji (( 1916) L. R. 44 I. A. 87.) ; Great Western Railway Company of Canada v. Braid (( 1863) 1 Moo. P. C. (N.S.)101, 117.) ; and Venkata Narasimha Appa Row y. Court of Wards (( 1886) 11 App. Cas. 660, 663.).] Nov. 30. The judgment of their Lordships was delivered by Lord Atkin. Their Lordships are unable to grant this application. They would always have every consideration for an applicant who came and said that, without any fault on his part, the case had been heard ex parte ; and, whenever he could satisfy their Lordships that he could have put before them some considerations which might have affected their decision, they would no doubt be willing to give him an opportunity of being heard again ; but the present case is a case which turns on construction and on construction only. The High Court, from which there was the appeal, after going carefully into all the arguments, 42 Law. Rep. 71 Ind. App. 23 ( 1943- 1944) Sheth Maneklal Mansukhbhai V. Sheth C himanlal Kalidas 144 adopted one construction, and the Board had given a detailed judgment in which they had dealt with the points taken by the High Court and had come to an opposite conclusion. It is not suggested that there is anything which could be said to the Board, if they did grant a further hearing, which had not been considered by the Board in giving their judgment on the previous hearing. In those circumstances it seems to their Lordships that it would be improper to cause the parties to have another hearing which could only have exactly the same result. Therefore their Lordships will humbly advise His Majesty that this application should be refused, with costs.