Skip to content


Birendra Nath Biswas Vs. Monorama Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1948Cal77
AppellantBirendra Nath Biswas
RespondentMonorama Devi and ors.
Cases Referred and Jagadish Narain Prasad v. Harbana Narain Singh
Excerpt:
- .....the ex parte dismissal was a proceeding not under section 26f but under the provisions of order 9, rule 9, civil p.c. that being so, no appeal could lie in this case by reason of sub-section (10) of section 26f, ben. ten. act.4. it was urged however that an appeal would lie from this order made under order 9, rule 9 by reason of section 141, civil p.c. and order 43, rule 1.5. order 9, rule 9 in terms is confined to suits and on the face of it the order would have no application to a proceeding under section 26f, ben. ten. act as such proceeding is not a suit. section 141 of the code however provides that the procedure provided in this code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in a court of civil jurisdiction. that being so, the.....
Judgment:
ORDER

Harries, C.J.

1. This is a petition for revision of an order of a learned Subordinate Judge to the effect that no appeal lay to his Court.

2. An application for pre-emption under Section 26F, Men. Ten. Act was dismissed for default. An application was then made for setting aside the dismissal and restoration of the application. That application was dismissed on contest and the unsuccessful applicant appealed to the Court of the learned Subordinate Judge. The learned Subordinate Judge held that no appeal lay and dismissed the appeal.

3. It has been argued in the first place that this was an order passed under Section 26F and was therefore appealable by reason of Sub-section (10) of that section. But, in my view, this is not an order under Section 26F. I have held that an order of dismissal for default would be an order under that section, but this was an order passed in an entirely different proceeding. The application under Section 26F had been dismissed for default and the applicant filed an application for restoration. Section 26F makes no provision for restoration, but the provisions for setting aside ex parte orders and restoring applications contained in the Code are made applicable to applications under Section 26F by reason of the provisions of Section 143, Ben. Ten. Act. The dismissal of this application to set aside the ex parte dismissal was a proceeding not under Section 26F but under the provisions of Order 9, Rule 9, Civil P.C. That being so, no appeal could lie in this case by reason of Sub-section (10) of Section 26F, Ben. Ten. Act.

4. It was urged however that an appeal would lie from this order made under Order 9, Rule 9 by reason of Section 141, Civil P.C. and Order 43, Rule 1.

5. Order 9, Rule 9 in terms is confined to suits and on the face of it the order would have no application to a proceeding under Section 26F, Ben. Ten. Act as such proceeding is not a suit. Section 141 of the Code however provides that the procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in a Court of civil jurisdiction. That being so, the procedure laid down by Order 9, Rule 9 though in terms applicable only to suits, is also applicable to applications in a civil Court by reason of Section 141.

6. It is then argued that if Order 9, Rule 9 applies to applications there is no reason at all why an appeal would not lie because Order 43, Rule 1(c) provides that an appeal shall lie from an order under Order 9, Rule 9 rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit.

7. The argument is that by reason of Section 141, Order 43, Rule 1 is made applicable to applications as well as suits.

8. It is to be observed that Section 141 speaks of procedure. What is made applicable to all proceedings in a Court of civil jurisdiction is the procedure provided in the Code with regard to suits. Now, a right of appeal is admittedly a substantive right and not a procedural right. Section 141 does not deal with substantive rights and therefore Courts have held that though Order 9, Rule 9 is made applicable to applications other than suits no appeal would lie from a dismissal Of such an application under Order 43, Rule 1.

9. This has been clearly laid down in a comparatively recent case in Sadaya Padayachi v. Chinnaswami Naidu 22 A.I.R. 1935 Mad. 609. In that case an application under Order 9, Rule 13 to have an ex parte decree set aside was dismissed for default and an application made thereafter to have that order set aside and the original application restored was dismissed upon the merits. It was held that no appeal lay from the order made on the subsequent application. The same view was taken by a Bench of this Court in Hara Kumar Mitter v. Murari Mohan Bose 9 A.I.R. 1922 Cal. 572 the heed-note of which readp as follows:

Where a suit is dismissed in default and an application to set aside the order is also dismissed in default, an order made on a subsequent application refuging to set aside the dismissal of the previous application, is not an order refusing to set aside the dismissal of a suit in default within the meaning of Clause (c) of Rule 1 of Order 43, Civil P.C., the suit having come to an end with the order dismissing it for default. Such an order is not open to appeal.

10. It was further held that Section 141, Civil P.C., cannot operate to give an appeal from an order not otherwise appealable under Order 43 of the Code.

11. A similar view has been taken in a number of eases namely, Chandar Sahai v. Durga Prasad 11 A.I.R. 1924 All. 682, Sharif Husssain v. Haider Husain ('22) 9 A.I.R. 1922 All. 337 and Jagadish Narain Prasad v. Harbana Narain Singh 5 A.I.R. 1918 Pat. 612.

12. It appears to me that these cases compel me to hold that there was no appeal against this order and that being so, the learned Subordinate Judge rightly dismissed the appeal.

13. The petition therefore fails and is dismissed. The rule is discharged with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //