Recall of ex parte appeal hearing refused where notice was duly served and respondents were represented by counsel.

Order 41 Rule 21 CPC permits recall and rehearing of an appeal only where the respondent was not duly served or was prevented by sufficient cause from appearing and the appeal was heard ex parte. Here, notice had been duly served, respondents were represented by counsel, and the motor accident appeal was heard in full, so those conditions were absent. A plea of a widow having entrusted the matter to counsel did not amount to sufficient cause after valid service. The fact that minor respondents attained majority did not alter the result because, under Order 32 Rule 12 CPC, they had to take steps to disown guardian representation and contest independently; having not done so, they remained bound. The recall application was rejected as not maintainable.

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Issues: Whether the earlier judgment in the motor accident appeal could be recalled and the appeal re-heard under Order 41, Rule 21 read with Section 151 of the Code of Civil Procedure, 1908 on the grounds that it was heard ex parte, that there was sufficient cause for non-appearance, and that the minor respondents had attained majority during the pendency of the appeal.

Analysis: The notice in the appeal had been duly served on the respondents, and the record showed that the appeal was not disposed of ex parte but was heard in extenso after appearance and argument by counsel for the respondents, including the court-appointed advocate for the minor respondents and counsel for the owner. Order 41, Rule 21 applies only where the appeal has been heard ex parte and the respondent was not duly served or was prevented by sufficient cause from appearing. Those conditions were not satisfied. The plea that one respondent was a destitute widow who had entrusted the matter to counsel did not constitute sufficient cause after valid service of notice. As to the minor respondents attaining majority, Order 32, Rule 12 required them to take steps if they wished to discontinue the guardian representation and contest in their own right; having not done so, they were bound by the decision.

Conclusion: The application for recall and re-hearing was not maintainable and was rejected.

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