| Citation(s) |
|---|
| 1957 SLG 4048 = 1957 SLD 4048 = 1957 PLD 271 |
Dacca High Court
Civil Revision No. 398 of 1953, decided on 26th July 1954, against the Order, dated the 30th January 1953, in Miscel laneous Case No. 187 of 1949, passed by Munsif, 4th Court, Comilla.
Presented By: Ibrahim, J
Basanta Kumar Adak v. Khirode Chandra Ghose L T R 55 Cal. 616, Ansarali v. Bhim Sankar Dutta Tewari 33 C W N 392, Defence Nath Goldar v. Gopal Chandra Das 42 C W N 128, Haji Mohammad Kazibulla Mondal v. Humayun Reza Choudhury 42 C W N 612, Subodh Chandra Mukherjee v. Sudhir Kumar Basu 54 C W N 106, Debrani Debya v. Kumar Sarat Kumar Roy 39 C L J 522, Basaratulla Mia v. Reajuddin Mia I L R 53 Cal. 679, Abdur Rahman Miji v. Abdul Wadud Mia P L D 1953 Dacca 183, Ram Shankar v. Ram Narain A I R 1928 All. 301, Bani Prasad v. Ambica Prasad A I R 1941 Oudh 91, Karim Hussain Majumdar v. Munshi Shujat Ali Kazi alias Jitu Mian C. R. No. 471/1950 and Sabitri Bala v. Rohini Kanta Mondal P L D 1952 Dacca 25 discussed. Jane Alam for Petitioner. Bhagirath Chandra Das for Opposite-Parties Nos. 1 and 2. Syed A. B. Mahmud Hussain for Opposite-Party No. 6.
Civil Revision No. 398 of 1953, decided on 26th July 1954, against the Order, dated the 30th January 1953, in Miscel laneous Case No. 187 of 1949, passed by Munsif, 4th Court, Comilla.
Presented By: Ibrahim, J
Basanta Kumar Adak v. Khirode Chandra Ghose L T R 55 Cal. 616, Ansarali v. Bhim Sankar Dutta Tewari 33 C W N 392, Defence Nath Goldar v. Gopal Chandra Das 42 C W N 128, Haji Mohammad Kazibulla Mondal v. Humayun Reza Choudhury 42 C W N 612, Subodh Chandra Mukherjee v. Sudhir Kumar Basu 54 C W N 106, Debrani Debya v. Kumar Sarat Kumar Roy 39 C L J 522, Basaratulla Mia v. Reajuddin Mia I L R 53 Cal. 679, Abdur Rahman Miji v. Abdul Wadud Mia P L D 1953 Dacca 183, Ram Shankar v. Ram Narain A I R 1928 All. 301, Bani Prasad v. Ambica Prasad A I R 1941 Oudh 91, Karim Hussain Majumdar v. Munshi Shujat Ali Kazi alias Jitu Mian C. R. No. 471/1950 and Sabitri Bala v. Rohini Kanta Mondal P L D 1952 Dacca 25 discussed. Jane Alam for Petitioner. Bhagirath Chandra Das for Opposite-Parties Nos. 1 and 2. Syed A. B. Mahmud Hussain for Opposite-Party No. 6.
RAJAB ALI-Petitioner
VERSUS
ABHAI CHARAN SAHA and others-Opposite-Parties
Law: Civil Procedure Code (V of 1908)
Section: 151
Civil Procedure Code (V of 1908), S. 151-Order dismissing for default in presence of opposite party, application to set aside sale-Whether appeal-ableInherent power of Court whether can be invoked for restoration of such application. The opposite-parties in the present case made an applica tion to the Court under section 174 (3) of Bengal Tenancy Act to set aside a rent sale in which the petitioner was the auction-purchaser. On the date fixed for hearing, the petitioner was present, but the opposite-parties were absent, and the application was dismissed for default. A review application filed by them was also rejected. Then they filed an application under section 151, Civil Procedure Code, and the Munsif set aside the dismissal order in exercise of his inherent power. On the question whether the Munsiff could do that: Held, that the Munsif could not set aside the order in exercise of his inherent power. Where an application to set aside a sale is dismissed for default in presence of the opposite party, that order is appeal-able as it amounts to an order refusing to set aside the sale. The Appellate Court is competent to resort to section 151, Civil Procedure Code if justice cannot be done otherwise than by applying the section. But where there is a right of appeal against an order dismissing an application for default, inherent power cannot be invoked to restore the application. JUDGMENT IBRAHIM, J.----This rule arises out of an application under section 174 (3) of the Bengal Tenancy Act to set aside a rent sale. The petitioner is the auction-purchaser. The application was made by opposite-parties 1 and 2. On the 17th of April 1950, which was fixed for hearing, the petitioner was present, but opposite-parties 1 and 2 were absent, and the application was dismissed for default. A review application filed by them was rejected on the 26th of June 1951, as misconceived. Then they filed an application under section 151 of the Code of Civil Procedure, and the learned Munsif set aside the dismissal order in exercise of his inherent power. The question is, whether be could do that. On the one hand it is contended…