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Giribala Dasi Vs. Prianath Pal - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in65Ind.Cas.476
AppellantGiribala Dasi
RespondentPrianath Pal
Cases ReferredPanchratan Koeri v. Ram Sahay
Excerpt:
civil procedure code, (act v of 1908), sections 47 and 115, order xxi, rule 100 - relief sought for in revision--other remedy open to petitioner--practice--application under rule 100, whether can be made by representative. - 1. this rule arises out of an application under order xxi, rule 100, civil procedure code. the petitioner's case is that she had purchased the property, which is a non-transferable occupancy holding, in execution of a mortgage-decree against the tenant some time before the sale brought about by the opposite party in execution of a rent-decree. the opposite party who is a landlord has purchased the holding in execution of that rent-decree and has obtained possession of the property through court dispossessing the petitioner.2. the learned munsif before whom the application was made has come to the conclusion that the applicant has no locus standi, that is, she is not competent to make the, application under rule 100, order xxi, code of civil procedure. he has relied mainly upon the case of.....
Judgment:

1. This Rule arises out of an application under Order XXI, Rule 100, Civil Procedure Code. The petitioner's case is that she had purchased the property, which is a non-transferable occupancy holding, in execution of a mortgage-decree against the tenant some time before the sale brought about by the opposite party in execution of a rent-decree. The opposite party who is a landlord has purchased the holding in execution of that rent-decree and has obtained possession of the property through Court dispossessing the petitioner.

2. The learned Munsif before whom the application was made has come to the conclusion that the applicant has no locus standi, that is, she is not competent to make the, application under Rule 100, Order XXI, Code of Civil Procedure. He has relied mainly upon the case of Panchratan Koeri v. Ram Sahay 43 Ind. Cas. 969 : 3 P.L.J. 579 : 4 P.L.W. in which it has been held that where a person is a representative within the meaning of Section 47, Code of Civil Procedure; he is not competent to maintain an application under Order XX(sic), Rule 100, Code of Civil Procedure. We are not prepared to go so far and might have come to a different conclusion if it were necessary for us to determine that question.

3. An objection has been made to the competency of this application by the opposite party on the ground that this Court should not interfere under Section 115 because the Court below has adopted a wrong view of the law, and more so when there is another remedy open to the petitioner, namely, bringing a regular suit. We take it as a settled practice of this Court that, where a party has got a remedy open to him to obtain the relief which he is seeking this Court will not ordinarily interfere, unless there has been a very serious miscarriage of justice. We do not thick that this is a case of that character and we are of opinion that it would not be right for us to interfere under Section 115, Code of Civil Procedure.

3. The Rule is, therefore, discharged with costs. Hearing-fee two gold mohurs.


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