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Saradindu Mukerjee and ors. Vs. Girish Chandra Tewari - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1925Cal184
AppellantSaradindu Mukerjee and ors.
RespondentGirish Chandra Tewari
Cases ReferredAbdul Rahman Saha v. Shana
Excerpt:
- .....abdul rahman saha v. shana (1920) 1 lah. 339. if it was not an application under order 47, rule 1 but an application under section 151 clearly no appeal lay to the district judge. i should, therefore, set aside the order of the district judge in appeal restoring the order of the munsif passed on the 11th may 1922; and i further set aside the order passed by the munsif on the 11th may 1922 and restore the execution case to its file. as these proceedings are the result of the fault of no party, i make no order for costs in any of the courts.
Judgment:

Suhrawardy, J.

1. The facts relating to this Rule are that the petitioners who are the decree-holders attached in execution of their decree certain properties belonging to the judgment debtor. A claim was preferred by a certain person in respect of two of those properties. The petitioners applied for the issue of the sale proclamation and it was ordered on the 13th February 1922 that the sale proclamation might issue on their depositing cost. On the 18th March 1922 the claim was allowed and two of the properties were released from attachment. On the 18th March the petitioners applied for the issue of fresh sale-proclamation in respect of the remaining properties. The order passed thereon was that the 11th May 1922 be fixed for the sale and that the sale proclamation should issue on the petitioner's paying the necessary costs. On the 11th May, the following order was passed. 'Correct processes not filed and no further steps taken. The execution case be dismissed for default.' In the petition which has been presented to this Court it is alleged that the petitioners were asked by the officer-in-charge of the Execution Department to take back the sale proclamations previously filed and to file correct ones. The petitioners thereupon put in two correct proclamations and two new proclamations and offered to deposit costs for the usual advertisement in the newspapers. They, however, did not alter the original date that was put on the processes because they say that the dates were to be put in by the officer of the Court under Rule 11, Sub-rules (1 and 4) of the General Rules and Circular Orders (Civil) of the High Court.

2. On the 11th May it is further alleged that their officer went to the officer-in-charge of the Execution Department and was given to understand that the sale day was again fixed for the 13th July. These allegations have not been contradicted and I must take them as they stand as it appears that the learned Munsif who had to enquire into this matter believed this state of filings. On the 11th May the Court passed the following order: 'Correct processes not filed. No further steps taken. Execution case be dismissed for default.' It does not appear from the order, nor have I been enlightened upon this point, as to which portion of the processes filed was incorrect. But I take it, as has been alleged by the petitioner, that the incorrectness lay in the wrong date that was allowed to stand on the proclamations.

3. Thereafter, the petitioners applied for Hotting aside the order passed on the 11th May and for restoration of the execution case. The application was headed under Order 47, Rule 1 and Section 151, Civil Procedure Code. The application was registered as one under Order 47, Rule 1. It was presented not before the officer who passed the order on the 11th May, but before his successor and it was heard by another officer succeeding the latter.

4. The learned Munsif who heard this application purported to treat the application as one under Order 47, Rule 1, Civil Procedure Code. After considering the circumstances of the case his conclusions were summed up in these terms. In any view it appears that there are good grounds for restoring the case to file and setting aside the order of dismissal passed in this case.

5. There was an appeal from this order of restoration of the execution case to the District Judge. The learned District Judge held that the application under Order 47, Rule 1 was incompetent inasmuch as there were contraventions of Rule 2, not having been presented to the Court that passed the order sought to be revised. In this view he decreed the appeal and allowed the order of dismissal passed on the 11th May to stand.

6. Against this order this Rule is directed and it is urged that the Courts below were wrong in placing the petitioners' application under Order 47, Rule 1, as it was in reality an application under Section 151, Civil Procedure Code. The same point was raised before the learned Judge and he was of opinion that the provisions of Section 151, could not be invoked in the present case because the Court, in the exercise of its inherent power, cannot assume jurisdiction to grant a review where it is expressly forbidden by the Legislature. This view is correct if the application was made by the petitioner under Order 47, Rule 1. I have quoted the ordering portion of the Munsif's judgment which looked if the order was passed under Order 9, Rule 6 (2), if that provision of the law be applicable to execution proceedings. The learned Munsif seems to have been of the opinion that the mistake was due to the Court and that the petitioners were not at fault. It is admitted by the learned Judge that this is a very hard case. The learned Judge further observes in determining the question of costs that the order dismissing the petition for execution was wrongly passed and he does not think that he should also allow the appellant's costs.

7. It is, therefore, conceded that the order passed on the 11th May was wrongly passed. That being so, I think it is a fit case in which I should interfere in the exercise of my revisional jurisdiction either with the order of the learned District Judge on appeal or with the order passed by the Munsif on the 11th May 1922. It was no doubt an error on the part of the petitioners to have headed their application as one under Order 47, Rule 1 Probably it was prepared for presentation before the officer who had passed the original order, but his departure made application for review infructuous. But it also purported to have been made under Section 151 on the ground that it was due to the mistake of the Court that their execution case was dismissed for default. Though the learned Munsif treated it as an application for review of judgment, it was open to the petitioners to argue before him that it was an application under Section 151. A similar view was taken under very similar circumstances in the case of Abdul Rahman Saha v. Shana (1920) 1 Lah. 339. If it was not an application under Order 47, Rule 1 but an application under Section 151 clearly no appeal lay to the District Judge. I should, therefore, set aside the order of the District Judge in appeal restoring the order of the Munsif passed on the 11th May 1922; and I further set aside the order passed by the Munsif on the 11th May 1922 and restore the execution case to its file. As these proceedings are the result of the fault of no party, I make no order for costs in any of the Courts.


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