Appeal of possession order brought by defendant who was absent for ruling should have at least been considered

Practice and procedure – High Court refused to entertain the defendants’ application to set aside an earlier judgment of 2nd November 2015 on the ground that it was functus officio – Ord. 36, r. 33 – possession of the plaintiff’s family home in Co. Roscommon – hearing proceeded in the absence of the defendants – defendant sent an email to the solicitor for the Bank requesting an adjournment but solicitor was on holiday and did not read email until the following day – whether the judge ought to have set aside the order in view of the defendant’s explanation for his absence on the previous Monday – finality of litigation and the doctrine of functus officio – Mr. Macken’s application for a set aside order should at least have been entertained on its merits by the High Court – whether there was an estoppel by election on the part of the defendants – High Court fell into error in failing to consider whether he should have exercised the discretion conferred by Ord. 36, r. 33 and in holding that he was entirely debarred by the functus officio doctrine from even considering Mr. Macken’s application to have the November 2nd, 2015 order set aside – appeal allowed.