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Haridasi Debi and ors. Vs. Sajani Mohan Batabyal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1932Cal770
AppellantHaridasi Debi and ors.
RespondentSajani Mohan Batabyal and anr.
Cases ReferredMahadeo v. Lakshmi Narayan A.I.
Excerpt:
- .....therefore arose as to whether such an application is competent, or whether in view of the full bench decision of this court in the case of fatimanneesa v. deoki pershad [1897] 24 cal.350 the application should not be one for review. in many cases till recently the rule laid down by the aforesaid pull bench decision was held to apply. but in some cases, of late applications like the present one have been entertained. and on a reference made by the taxing officer under section 5, court-fees act, c.c. ghose, ag. c.j., held that it is sufficient if the application is stamped with a court-fee of rs. 2 only.3. we have heard the learned advocates for the parties as also mr. nasim ali who, at our request appeared on behalf of the government and was good enough to give us his assistance.4......
Judgment:

1. This Rule has been issued, to show cause why an appeal which was dismissed for default of payment of the initial deposit should not be restored, the said dismissal being set aside. Illness and poverty have been pleaded as grounds for the default.

2. The application on which the Rule has been issued was made on a court-fee of Rs. 2. A question therefore arose as to whether such an application is competent, or whether in view of the Full Bench decision of this Court in the case of Fatimanneesa v. Deoki Pershad [1897] 24 Cal.350 the application should not be one for review. In many cases till recently the rule laid down by the aforesaid Pull Bench decision was held to apply. But in some cases, of late applications like the present one have been entertained. And on a reference made by the taxing officer under Section 5, Court-fees Act, C.C. Ghose, Ag. C.J., held that it is sufficient if the application is stamped with a court-fee of Rs. 2 only.

3. We have heard the learned advocates for the parties as also Mr. Nasim Ali who, at our request appeared on behalf of the Government and was good enough to give us his assistance.

4. The Full Bench decision was passed under the Code of 1882. Under that Code an order dismissing an appeal for default used to be regarded by this Court as a decree. The Full Bench decision proceeded upon the view that as there view that as there were only two methods prescribed by the Code by which judgments and decrees could be set aside, namely those described to Rs. 558 and 623 of the Code, and in-in much as the former section related only to default of appearance, a decree dismissing an appeal for default in deposing costs could only be set aside by means of an application for review under Section 623 and on an order made under Section 626. In the Code of 1908 the definition of decree expressly excludes an order of dismissal for default.

5. In the Patna High Court the rule laid down by the aforesaid Full Bench decision was followed even after the Code of 1908 came into force, but it appears from the case of Ananta Potdar v. Manaul Potdar A.I.R. 1926 Pat. 27 that since 1923 a view was taken in several cases that the appeal could, in such circumstances, be restored on an application under Order 41, Rule 19, read with Section 151 of the Code. In that case the learned Judges reverted to the Full Bench rule, observing that the change in the definition of 'decree' as , made in the Code of 1908 did not really make any difference.

6. The Bombay High Court has hold that Order 41, Rule 19 does not exhaust the powers of the Court in a proper case to re-admit an appeal or an application dismissed for default and it is open to the Court to dealt with these matters on applications made for the exercise of the Court's inherent powers under Section 159 of the Code: Sonubai v. Shivaji Rao A.I.R. 1921 Bom. 20. The Sind Court, which usually follows the Bombay decisions, has taken the same view in A.I.R. 1931 Sind 153.

7. In our opinion the difficulty of applying the Full Bench decision to cases of this nature has been considerably enhanced by the decision of the Judicial Committee in the case of Chhajju Bam v. Neki A.I.R. 1922 P.C. 112 in which it has been said that the expression any other sufficient cause' in Order 47, Rule 1 must be interpreted to mean 'a reason sufficient on grounds at least analogous to those specified immediately previously.' The question whether such decisions as Gopikaranian v. Mahar Ali : AIR1924Cal872 Narain Das v. Chiranji Lal : AIR1925All364 Firm K. K. S. A.R. v. Maung Ka Nyun A.I.R. 1928 Rang. 31 can be supported without doing some violence to the decision in Chhajju Ram's case A.I.R. 1922 P.C. 112 need not detain us. It is sufficient to point out that we have on the other hand such cases as Mahadeo v. Lakshmi Narayan A.I.R 1925 Bom. 521 in which it has been held that a plaintiff whose suit has boon dismissed for default under Order 9, Rule 8, Civil P. C., has no remedy by way of review, and Hindu Basini v, Secy. of State : AIR1924Cal774 in which it has been held that an erroneous impression negligently formed bears no analogy to an excusable failure to bring before the Court new and important matter of evidence. It would require no ordinary-flight of imagination to treat a failure to deposit initial costs as being an omission of the same kind or description as an omission to produce a matter or evidence subsequently discovered or as being a mistake or error apparent on the face of the record. We are also of opinion that the necessity of applying the Full Bench decision to cases of this description has been altogether obviated by the change in the meaning of the word decree' introduced by the Code of 1908. In these circumstances, even though Order 41, Rule 19 may not apply in its terms to such a case, we are inclined to hold that that rule read with Section 151 of the Code would enable an application of the present nature to be entertained, and that Articles 4 and 5, Court-fees Act, do not govern such an application.

8. On the merits we are of opinion that the rule should be made absolute. We order that if within seven days from today the initial coats for default of payment of which the appeal was dismissed be paid in, the order of dismissal will be vacated and the appeal restored to the file, but if this payment is not made within the time allowed as above, the rule will stand discharged and in the latter case only with costs 1 gold mohur to the respondents who have appeared in this Rule.


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