Section 21. Re-hearing on application of respondent against whom

21. Re-hearing on application of respondent against whom ex parte decree made.— Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to re-hear the appeal; and, if he satisfies the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him. 21. Rules as to witnesses to apply to parties summoned.— Where any party to a suit is required to give evidence or to produce a document, the provisions as to witnesses shall apply to him so far as they are applicable. 1. Subs. by Act 104 of 1976, s. 66 , for certain words (w.e.f. 1-2-1977). 2. Subs. by s. 66, ibid ., for "fifty" (w.e.f. 1-2-1977). 3. Subs. by s. 66, ibid., for "two hundred miles" (w.e.f. 1-2-1977). 4. The proviso added, by s. 66, ibid. ( w.e.f. 1-2-1977). STATE AMENDMENT Uttar Pradesh Amendment of Order XVI.— In the First Schedule, in Order XVI — (a) in rule 2, —] (i) in sub-rule (1) at the end, the following proviso shall be inserted , namely :— "Provided, where Government is the party applying for a summons to a Government servant, it shall not be necessary for it to make any such payment into court." ; (ii) sub-rule (4) as inserted by the Allahabad High Court shall be omitted and after sub-rule (4) as inserted by the Code of Civil Procedure (Amendment) Act, 1976, the following sub-rule shall be inserted , namely :— "(4-A) Allowances, etc. of, Government servant witnesses to be taxed as costs— Any travelling and daily allowances and the salary, payable to a Government servant who attends the Court to give evidence or to produce a document shall, on the amount being certified by such witness be taxable as costs. "Explanation 1 — The travelling and daily allowances shall be in accordance with the rules governing such allowances, applicable to the Government servant in question. "Explanation 2 — The daily allowance and salary of the Government servant shall be proportionate to the number of days of his attendance required by the Court." ; - (b) in rule 4, the following proviso shall be inserted, namely :— "Provided that nothing in this rule shall apply to a case where the witness is a Government servant summoned at the instance of Government as a party." [ Vide Uttar Pradesh Act 57 of 1976, s. 8] 1[ORDER XVI A Attendance of witnesses confined or detained in prisons 21. Non-compliance with order for discovery.—[2] [(1)] Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect and[3] [an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard.] 4[(2) Where an order is made under sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action.] 1. Ins. by Act 104 of 1976, s. 61 (w.e.f. 1-2-1977). 21. Simultaneous execution. —The Court may, in its discretion, refuse execution at the same time against the person and property of the judgment-debtor. 21. To whom commission may be issued.— A commission under rule 19 may be issued to any Court within the local limits of whose jurisdiction the witness resides, or, where[3] * the witness resides within the 1. Ins. by Act 104 of 1976, s. 75 (w.e.f. 1-2-1977). 2. Ins. by Act 10 of 1932, s. 3. 3. The words "the high Court is established under the Indian High Courts Act 1861, or the Government of India Act, 1915, and" omitted by the A.O. 1937. local limits of[1] [the ordinary original civil jurisdiction of the High Court], to any person whom the Court thinks fit to execute the commission.