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Sri Nayanananda Nayak Vs. Ahalya Dei and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revision No. 542 of 1981
Judge
Reported in1985(II)OLR216
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151
AppellantSri Nayanananda Nayak
RespondentAhalya Dei and ors.
Appellant AdvocateP. Kar and D.K. Sahoo
Respondent AdvocateS. Misra(1), S.K. Nayak (2), J.M. Mohanty, G.P. Mohapatra, K. Saha and B. Das (For Minor O. Ps 10 and 11)
DispositionPetition allowed
Excerpt:
.....the impugned order on the ground that a defaulter like the petitioner is not entitled to invoke the jurisdiction under section 151, c. since i am not satisfied that the rejection of the application for default is in exercise of judicial discretion, i set it aside......by an order refusing to entertain an application under section 151, civil procedure code, this civil revision has been filed.2. i have perused the impugned order. i have also beard mr. p. kar, the learned counsel for the petitioner and mr. s. misra (1), the learned counsel for the contesting opposite parties. 3. petitioner filed an application under section 151, c. p. c. challenging the inequitability in distribution of the lands by the commissioner. this application was registered as misc. case no. 72 of 1979. an application for restoration of the misc. case under section 151, c. p. c, was rejected on the ground that no relief can be granted under that provision. therefore, another application was filed challenging the report of the commissioner which was the subject-matter of misc......
Judgment:

S.C. Mohapatra, J.

1. Defendant No. 1 is the petitioner. Aggrieved by an order refusing to entertain an application under Section 151, Civil Procedure Code, this Civil Revision has been filed.

2. I have perused the impugned order. I have also beard Mr. P. Kar, the learned counsel for the petitioner and Mr. S. Misra (1), the learned counsel for the contesting opposite parties.

3. Petitioner filed an application under Section 151, C. P. C. challenging the inequitability in distribution of the lands by the Commissioner. This application was registered as Misc. Case No. 72 of 1979. An application for restoration of the Misc. Case under Section 151, C. P. C, was rejected on the ground that no relief can be granted under that provision. Therefore, another application was filed challenging the report of the Commissioner which was the subject-matter of Misc. Case No. 72 of 1979. This second application was registered as Misc. Case No. 133 of 1981. The learned. Subordinate Judge has rejected this application in the impugned order on the ground that a defaulter like the petitioner is not entitled to invoke the jurisdiction under Section 151, C. P. C.

4. There can be no doubt that exercise of the inherent power under Section 151, C. P. C, is purely discretionary. There is also no doubt that the petitioner was, a defaulter. In case the default was for sufficient cause, he should not be penalised for being a defaulter unless the same is the only inevitable effect by operation of law.

5. Mr. Kar advanced arguments on merits of the application, I am not inclined to consider the same at this stage. Since I am not satisfied that the rejection of the application for default is in exercise of judicial discretion, I set it aside. The trial Court shall dispose of the application after considering the objections to be raised by the opposite parties. No observation in this Civil Revision shall influence the learned Subordinate Judge in disposing of Misc. Case No. 135 of 1982 independently.

6. In the result, the Civil Revision is allowed. No costs.


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