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Netai Chandra Ghose and ors. Vs. Phani Bhusan Biswas and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1885 of 1972
Judge
Reported inAIR1977Cal40
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 and 151 - Order 39, Rules 1 and 2
AppellantNetai Chandra Ghose and ors.
RespondentPhani Bhusan Biswas and anr.
Appellant AdvocateChandi Das Ray and ;Rabindra Nath Dutta, Advs.
Respondent AdvocateS.K. Biswas, Adv.
DispositionPetition allowed
Cases ReferredB) (Bimala Devi v. A. C. Mallick). In
Excerpt:
- .....opposite parties, submits that it is true that an order passed under order 39. rule 2 (3) of the code is an appealable order, but in the circumstances of the case the court must be said to have jurisdiction to entertain an application under section 151 and to pass necessary order. in support of his contention mr. biswas first refers to a decision reported in : [1953]4scr136 (keshardeo chamria v. radha kissen chamria). in this case on the adjourned date of hearing of an execution, the decree-holder again applied for time for giving instructions to his pleader for taking necessary steps in execution but the application for time was refused by the court and the execution case was dismissed. the decree-holder then applied under section 151 of the code for restoration of the case and the.....
Judgment:

N.C. Mukherji, J.

1. This is an application under Section 115 of the Code of Civil Procedure and is directed against Order No. 195 dated February 18, 1972 passeed by Sri R. L. Mukherjee, Subordinate Judge, 9th Court at Alipore in Misc. Case No. 96 of 1967 arising out of Title Suit No. 100 of 1967.

2. The facts of the case may briefly be stated as follows :--

3. The petitioner instituted Title Suit No. 100 of 1967 for declaration of title, recovery of khas possession and injunction. The petitioners subsequently filed an application under Order 39, Rules 1 and 2 of the Code and the opposite parties were restrained by an order of ad interim injunction from raising any construction on the suit land. The said order was served upon them on 13th November 1967. In spite of service of ad interim injunction the opposite parties started to raise construction. Thereafter the petitioners filed an application under Order 39, Rule 2 (3) of the Code for attachment of the properties. The said application was registered as Misc. Case No. 96 of 1967 and an order of attachment was passed on 13th of July 1968. Thereafter the learned Subordinate Judge on 14th of February 1970 passed an order for sale of the attached properties under Order 39, Rule 2 (3) of the Code and it was ordered that out of the sale proceeds 3/4th thereof should be awarded to the petitioners as compensation and the balance should be paid to the opposite parties. On 18-11-1971 the opposite parties filed an application under Section 151 of the Code for setting aside the order for sale. The said application was heard in presence of both the parties and by an order No. 195 dated 18-2-1972 the learned Judge vacated the order dated 14-2-1970 and set aside the order for sale of the properties. It is stated that though the injunction order was served on 13-11-1967 the opposite parties continued construction even upto 22-4-68 which will appear from the second inspection report. As such the violation of injunction order continued for several months. Being aggrieved by the order dated 1-8-2-72, the petitioners have come up before this Court.

4. Mr. Chandidas Ray Chowdhury, learned Advocate appearing on behalf of the petitioners, contends that Order 39, Rule 2 (3) of the Code was an appealable order and as such the learned Subordinate Judge ought not to have entertained an application under Section 151 of the Code. It is submitted that the learned Judge acted illegally and with material irregularity in exercise of his jurisdiction by entertaining the application under Section 151 of the Code and setting aside the order for sale which was passed under Order 39, Rule 2 (3) of the Code and which is an appealable order under Order 43, Rule 1 (r) of the Code.

5. In support of his contention Mr. Ray Chowdhury refers to a decision reported in : AIR1952Cal577 (Krishna Mohan v. Nripendranath). In this case upon an application by the judgment-debtor for relief under Section 36 of the Bengal Money Lenders Act to reopen the mortgage decree it was ordered that the preliminary and the final decree be reopened. The decree-holders filed an appeal against the said order but it was allowed to be dismissed. In the meantime the decree-holders made an application for amendment of the reopened decree and prayed for a direction in terms of Section 36(2)(e) directing restoration of possession of the decree-holder auction-purchasers in case of default in payment of the instalments and the municipal rates and taxes as provided for in the reopened decree. The Subordinate Judge made an order directing that the decree be amended. The amendment was purported to have been made under either Section 152 or Section 151 of the Code. It was held that it could not be said that the Court while passing an order directing the decree to be reopened was not conscious of what would follow in case of a default on the part of the judgment-debtor in complying with the directions contained in that order. It was purely a case of error on the part of the Court. Such an error could be remedied by proper proceedings either by way of a review if that was allowable under the law or by an appeal against the reopened decree. The decree-holder did prefer an appeal but did not prosecute it and allowed the same to be dismissed. In the circumstances it was difficult to say that the error in the order of the Court reopening the decree was an accidental slip or omission which justified the Court in exercising its power under Section 152.' It was further held that 'The Court could not also exercise the inherent powers under Section 151, reason being that these powers could not be invoked where there was another remedy available to the party'. Their Lordships in coming to the above conclusion relied on the Full Bench decision reported in AIR 1917 Cal 44 (FB) (Abdul Kasim Abu Ahmad v. Allahabad Bank Ltd.).

6. Mr. Sushil Kumar Biswas learned Advocate appearing on behalf of the opposite parties, submits that it is true that an order passed under Order 39. Rule 2 (3) of the Code is an appealable order, but in the circumstances of the case the Court must be said to have jurisdiction to entertain an application under Section 151 and to pass necessary order. In support of his contention Mr. Biswas first refers to a decision reported in : [1953]4SCR136 (Keshardeo Chamria v. Radha Kissen Chamria). In this case on the adjourned date of hearing of an execution, the decree-holder again applied for time for giving instructions to his pleader for taking necessary steps in execution but the application for time was refused by the Court and the execution case was dismissed. The decree-holder then applied under Section 151 of the Code for restoration of the case and the Court thereupon restored the execution case under its inherent powers in order to rectify the said mistake it had committed in dismissing the execution case by the same order without giving opportunity to the decree-holder to take the necessary steps. It was held that 'in the circumstances of the case the order dismissing the execution on part satisfaction was bad and the executing court was justified in correcting the same under its inherent powers'.

7. The facts of this case are completely different from the facts of the present case and the principle laid down in this case has no application to the present case.

8. Mr. Biswas next refers to a decision reported in : AIR1962SC527 (Manohar Lal Chopra v. Hiralal). In this case it was held by the majority view that 'It is well settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The effect of the expression 'if it is so prescribed' in Section 94 is only this that when the rules in Order 39, Civil Procedure Code prescribe the circumstances in which the temporary injunction can be issued, ordinarily the Court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances cf the case bring it within the prescribed rule. If the provisions of Section 94 were not there in the Code, the Court could still issue temporary injunctions, but it could do that in the exercise of its inherent jurisdiction. It is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisions of Section 94 of the Code have their effect and not in taking away the right of the Court to exercise its inherent power'. The principle laid down in the above case also does not apply to the facts of the present case. In the present case the question is if there is an express provision of appeal against an order whether an application under Section 151 is maintainable? To support his contention that in some circumstances such an application is maintainable Mr. Biswas refers to the Full Bench decision of this Court reported in : AIR1975Cal80 (FB) (Bimala Devi v. A. C. Mallick). In this case 'An application under Order 21, Rule 90 was dismissed for default. Then the petitioner filed an application under Section 151 of the Code. It was held by the Full Bench that 'Though an appeal lies under Order 43, Rule 1 (j) of the Civil Precedure Code from an order dismissing an application under Order 21, Rule 90 such an appeal will however be useless and ineffective inasmuch the appellate court would have no materials on the record when no evidence has been adduced to come to a decision whether the appellant was prevented by sufficient cause from appearing in court when his application under Order 21, Rule 90, was dismissed'. It was further held that 'In such a case although an appeal has been provided under the Civil Procedure Code, the Court will have jurisdiction to entertain an application under Section 151 of the Code for setting aside the order of dismissal for default'. But the position in the present case is not such as was in the case before the Full Bench. In this case an order was passed for sale of the properties under Order 39, Rule 2 (3) of the Code. The Court was satisfied that there was violation of the order of injunction. Aggrieved parties could have very well preferred an appeal against the said order. In such circumstances it cannot be said that without preferring an appeal the aggrieved parties can file an application before the same Court under Section 151 of the Code for setting aside its earlier order.

9. For ell the reasons stated above we are of the opinion that the learned court below ought not to have entertained the application under Section 151 of the Code when there is a clear provision in the Code for preferring an appeal against the order passed under Order 39, Rule 2 (3) specially in view of the facts and circumstances of the case.

10. In the result this application succeeds and the Rule is made absolute. The Order No. 195 dated February 18, 1972 passed by the learned Subordinate Judge in Misc. Case No. 96 of 1967 be set aside There will be however no order as to costs.

B.C. Ray, J.

11. I agree.


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