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Kumud Kumar Bose and ors. Vs. Hari Mohan Samadar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in30Ind.Cas.45a
AppellantKumud Kumar Bose and ors.
RespondentHari Mohan Samadar
Excerpt:
civil procedure code (act v of 1908), order xliii, rule 1, (d) - appeal against order dismissing for default application to set aside ex parte decree, maintainability of. - .....order by which the court of first omstamce dismissed for default an application to set aside an ex parte decree in a mortgage suit. the petitioner, who was the defendant in that suit, applied to have the ex parte decree set aside. the application was fixed for disposal on; the 7th november 1914. on that date an application was made on his behalf for adjournment. the court held that the application was frivolous and refused to grant time; thereupon, the pleader intimated to the court that he had no further instructions. the application was accordingly dismissed for default. the petitioner then appealed to the district judge; the result was that the following order was recorded: 'no appeal lies; summarily dismissed,' it is clear that under clause (d) of rule 1 of order xliii of the code,.....
Judgment:

1. In this case, the District Judge has refused to entertain an appeal a against an order by which the Court of first omstamce dismissed for default an application to set aside an ex parte decree in a mortgage suit. The petitioner, who was the defendant in that suit, applied to have the ex parte decree set aside. The application was fixed for disposal on; the 7th November 1914. On that date an application was made on his behalf for adjournment. The Court held that the application was frivolous and refused to grant time; thereupon, the Pleader intimated to the Court that he had no further instructions. The application was accordingly dismissed for default. The petitioner then appealed to the District Judge; the result was that the following order was recorded: 'No appeal lies; summarily dismissed,' It is clear that under Clause (d) of Rule 1 of Order XLIII of the Code, the appeal was competent. The order assailed by way of appeal was an order under Rule 13 ofOrder IX; it was immaterial that the application to set aside the ex parte decree I had been dismissed, not on the merits, but for default. The District Judge has clearly declined to exercise a jurisdiction vested in him by law.

2. The result is that this Rule is made absolute and the order of the District Judge set aside. The records will be returned to him in order that the appeal may be heard on the merits.


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