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Abdul Ohad and anr. Vs. Amdali Gazi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal248,57Ind.Cas.969
AppellantAbdul Ohad and anr.
RespondentAmdali Gazi and ors.
Cases Referred and Kumud Nath Roy Chowdhury v. Rai Jatinira Nath Chowdhury
Excerpt:
civil procedure code (act v of 1908), order ix, rule 13 - decision on contest against some defendants and ex parte as against others--appeal by contesting defendants without making absentee defendants parties respondents dismissal of--application to set aside ex parte decree to primary court, whether lies. - .....of uzirulla came forward and applied under order ix, rule 13, civil procedure code, to have the ex parte decree made in the court of first instance set aside, in the court of first instance the subordinate judge declined to entertain this application on the ground that it should have been presented to the appellate court. on appeal against this order the learned district judge held that an appeal against such an order did not lie and suggested that the remedy of the petitioners was in this court in the exercise of this court's revisional jurisdiction.2. the essential question then in this rule is whether this application for setting aside the ex parte decree made against the two minor heirs of uzirulla should be heard by the subordinate judge who made the ex parte decree, or should be.....
Judgment:

1. In this case it appears that the plaintiffs brought a suit for recovery of possession on establishment of title. The principal defendants were five persons, the heirs of one Uzirulla. Of these the defendants Nos. 1 and 2 were of (sic) being the elder sons of (sic) The defendant No. 3 was his (sic)of full age, and defendants Nos. 4 (sic) were minors. The suit was contested (sic) two elder sons of Uzirulla and was decided on contest against them and ex parte against defendants Nos. 3, 4 and 5. The (sic) endants Nos. 4 and 5 being minors were represented in the suit by their mother defendant No. 3, and on an issue raised in both the Courts below it has been held that they were properly represented by the defendant No. 3. Against the decision of the Court of first instance an appeal was preferred by the defendant No. 1. To that appeal he made neither the mother nor the minor defendants parties respondents. His appeal failed, and now the two minor sons of Uzirulla came forward and applied under Order IX, Rule 13, Civil Procedure Code, to have the ex parte decree made in the Court of first instance set aside, In the Court of first instance the Subordinate Judge declined to entertain this application on the ground that it should have been presented to the Appellate Court. On appeal against this order the learned District Judge held that an appeal against such an order did not lie and suggested that the remedy of the petitioners was in this Court in the exercise of this Court's revisional jurisdiction.

2. The essential question then in this Rule is whether this application for setting aside the ex parte decree made against the two minor heirs of Uzirulla should be heard by the Subordinate Judge who made the ex parte decree, or should be heard in the Court of the District Judge to whom also a substantive application of the name nature was subsequently preferred. On the facts of this case and also on the authority of the eases of Hedlot Khasia v. Karan Khasiani 13 Ind. Cas. 377 : 15 C.L.J, 241 and certain other cases of which reference may be made to Brija Lal Singh v. Mahadeo Prasad 12 Ind. Cas. 669 : 17 C.W.N. 133 : 15 C.L.J. 432 and Kumud Nath Roy Chowdhury v. Rai Jatinira Nath Chowdhury 9 Ind. Cas. 189 : 38 C. 394 : 13 C.L.J. 221 : 15 C. W.N. 399, we must hold that the application to set aside an ex parte decree made in the primary Court did lie to that Court, and should be heard and disposed of by that Court.

3. We, therefore, set aside the order of the District Judge dated the 28th June 1919 and also the order of the Subordinate Judge dated the 1st March 1919 and return this application to the Subordinate Judge in order that the may deal with it on the merits. We make the Rule absolute in the above terms.

4. Under all the circumstances we make no order as to costs.


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