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Raghunandan Singh and anr. Vs. Jagdis Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in3Ind.Cas.30
AppellantRaghunandan Singh and anr.
RespondentJagdis Singh and ors.
Excerpt:
civil procedure code (act xiv of 1882), sections 108, 083 - civil procedure code (act v of 1908), section 144--ex paste decree--setting aside--sale under decree set aside-subsequent decree--sole not revived. - .....sale that ensued on the decree was also sot aside as against them. in december of the same year on retrial a decree was made against them and on the 25th january 1908 an appeal in which it was sought to set aside the order which set aside the sale was dismissed. the appellant now appears before us in. appeal against this dismissal.2. it is argued that we are to apply by analogy the principle of restitution provided in section 144 of the new code corresponding with section 583 of the old code. this appears to us not to be applicable. after the decree has once been set aside under section 108 it cannot by any subsequent proceeding be taken to be revived and the proceedings under it are consequently invalid. we do not see how we can extend the principle laid down on appeals by section.....
Judgment:

1. In this case a decree was passed against eight defendants. In execution of this decree certain property was sold and purchased by the decree-holder. Subsequently three of the defendants applied to have the decree set aside under Section 108 of the Old Code of Civil Procedure, they not having appeared at the previous proceeding. The proceedings being ex parte as far as they were concerned the decree as against them was sot aside on the 14th August. On the 19th of the same, month the sale that ensued on the decree was also sot aside as against them. In December of the same year on retrial a decree was made against them and on the 25th January 1908 an appeal in which it was sought to set aside the order which set aside the sale was dismissed. The appellant now appears before us in. appeal against this dismissal.

2. It is argued that we are to apply by analogy the principle of restitution provided in Section 144 of the new Code corresponding with Section 583 of the old Code. This appears to us not to be applicable. After the decree has once been set aside under Section 108 it cannot by any subsequent proceeding be taken to be revived and the proceedings under it are consequently invalid. We do not see how We can extend the principle laid down on appeals by Section 144, nor can we see any reason why it should be necessary to do so, for the decree passed on the rehearing is a new decree so far as the defendants are concerned and is not in any way a revival of the former decree which has been set aside for good so far as the defendants Nos. 4, 7 and 8 are concerned on account of some defect in the trial. The result is that this appeal is dismissed.


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