Full Judgment
1. We have decided that it would be in the interests of justice to set aside the ex parte order and to remit this case to the learned District Judge to hear the application on the merits. Our grounds for doing so are as follows:--It is not desirable to disturb the established practice. The learned Judge's attention' was drawn to Section 169 of the old Act of 1882 which governs the Peoples' Industrial Bank Ltd. In liquidation, but his attention was not drawn to the authorities, such as they are, under that section. In 1894 the Bombay High Court decided that Section 169 did not apply to an application to set aside an ex parte order. Sir George Knox decided much the same thing in the year 1893 reported in the case of Mussoorie Bank Ltd. v . Himalaya Bank Ltd. 16 A. 53 : A.W.N. (1893) 205 : 8 Ind. Dec. (N.S.) 35, In England the view taken under the same section is that a certain amount of latitude is allowed, because in these matters of winding up, the previous orders of the Court are net based upon issues which have been formulated as they are in an ordinary suit with pleadings, and the time for appealing is very short. In view of this consistent practice; we have come to the conclusion that the learned Judge, although it was a very 'natural view to take and we might have taken it ourselves if it had not been for the view which has been taken in the past, was wrong in holding that Section 169 was an absolute bar. The costs of this appeal must abide the result of the application to the learned Judge on the merits, which should be restored to his list and be disposed of as soon as he conveniently can. The costs will include fees on the higher scale.
2. It would be a great hardship to bind an alleged contributor by the, representation by a Vakil engaged four years before since when, presumably, everybody had forgotten all about it.