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Abdul Samad Vs. Grasiti Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1907)ILR29All596
AppellantAbdul Samad
RespondentGrasiti Bibi and ors.;liaqat Husain
Excerpt:
civil procedure code, sections 103, 310 and 588(8) - appeal--order refusing to restore an application under section 310 which had been dismissed for default of appearance. - - the objection seems to me to be well founded. the order complained of in this case is not an order rejecting an application to have the dismissal of a suit set aside......and was purchased by the respondent liaqat husain. an application under section 310 of the code of civil procedure was presented by one kallu, who described himself as the agent of two of the judgment-debtors, praying to have the sale set aside. the auction purchaser resisted this application, and the 15th of september 1906 was fixed for hearing. on that date the applicant did not appear, and consequently the application was rejected for default of appearance. on the 20th of september 1906 ghasiti bibi made an application to the court asking for the restoration of the case. this application purported to have been made under section 103 of the code of civil procedure. on the 26th of november it was rejected, and from this order the present appeal has been preferred. it is contended that.....
Judgment:

Banerji, J.

1. A preliminary objection has been raised by the learned Counsel for the respondents to the effect that no appeal lies in this ease. For the purpose of determining this objection it is necessary to state the circumstances under which the appeal was filed. There was a decree against Musammat Ghasiti Bibi and others, in execution of which the property of the judgment debtors was sold by auction on the 21st of July 1906 and was purchased by the respondent Liaqat Husain. An application under Section 310 of the Code of Civil Procedure was presented by One Kallu, who described himself as the agent of two of the judgment-debtors, praying to have the sale set aside. The auction purchaser resisted this application, and the 15th of September 1906 was fixed for hearing. On that date the applicant did not appear, and consequently the application was rejected for default of appearance. On the 20th of September 1906 Ghasiti Bibi made an application to the Court asking for the restoration of the case. This application purported to have been made under Section 103 of the Code of Civil Procedure. On the 26th of November it was rejected, and from this order the present appeal has been preferred. It is contended that no appeal lies from an order dismissing an application under Section 103 unless the order is one by which an application to set aside the dismissal of a suit has been rejected and the order in this case is not an order of that description. The objection seems to me to be well founded. It is not denied that unless the law gives a right of appeal against any particular order, no appeal lies against such order. The only case in which an appeal is allowed against an order passed under Section 103 is that mentioned in Clause (8), Section 588 of the Code of Civil Procedure. Under that clause an appeal lies from orders rejecting applications under Section 103 for an order to set aside the dismissal of a suit. It is true that under the explanation to Section 647 of the Code and under the rulings of their Lordships of the Privy Council, proceedings in execution are proceedings in the suit. But it is at every order in a suit or execution proceeding dismissing an application under Section 103 which is open to appeal under Section 588. The only order under Section 103 from which an appeal is allowed by Section 588 is, as said above, an order rejecting an application to set aside the dismissal of a suit. The order complained of in this case is not an order rejecting an application to have the dismissal of a suit set aside. No appeal therefore lies from that order. In the case of an application under Section 311 of the Code of Civil Procedure dismissed for default of appearance and sought to be restored by an application under Section 103 it was held by the Calcutta High Court in Jung Bahadur v. Mahadeo Prasad (1903) I.L.R., 31 Calc., 207, following Ningappa v.Gangawa (1885) I.L.R., 10 Bom., 433 and Raja v. Strinivasa (1888) I.L.R., 11 Mad., 319, that no appeal lies. The principle laid down in these cases applies equally to the present case, and I must hold that no appeal lies. I accordingly allow the preliminary objection and dismiss the appeal with costs.


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