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Safdar Ali Vs. Kishun Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in7Ind.Cas.241
AppellantSafdar Ali
RespondentKishun Lal
Excerpt:
civil procedure code (act v of 1908), section 141, order ix, rule 9, order xxi, rule 103 - execution proceedings--re-hearing. - .....which the munsif alone could have dismissed the case for default namely section 102 of the old code or rule 9, order ix of the present code must be applicable ; and if rule 9, order ix is applicable then there appears to us to be no reason why the petitioner should not take the shortest way to obtain relief from the order he complains of, namely, that by way of re-hearing. order xxi, rule no. 103, does not say that this right to apply for a re-hearing is barred. it merely says that he may institute a suit if he chooses. we are of opinion that the munsif distinctly declined to exercise a jurisdiction which was vested in him and we, therefore, make the rule absolute, set aside the order, and direct that he do hear the application for re-hearing on its merits.6. this order will carry.....
Judgment:

1. This was a Rule calling upon the opposite party to show cause why the order of the Munsif declining to entertain the application of the petitioner on the ground that the same was barred by Rule 103, Order XXI, Civil Procedure Code, should not be set aside.

2. It appears that the petitioner's application in an execution matter was dismissed for default at 6 o'clock in the morning in the beginning of the hot weather sittings. On the allegation that he was not aware of the change in the hour of sittings of the Court, the petitioner applied to the Munsif for a re-hearing of the proceedings. The Munsif dismissed the petition on the ground that the application for re-hearing was barred by Order XXI, Rule 103, and that the petitioner had no other course left to him than that of bringing a regular suit.

3. On appeal to the District Judge it was held that there was no appeal as the original suit was not open to appeal.

4. Before us it is contended for the objector that Section 141 of the new Civil Procedure Code has exactly the same bearing as Section 647 of the old Code and that the deliberate repeal of the words other than suits and appeals 'and of the explanation that the section did not apply to applications for the execution of decrees, which are proceedings in suits' have no meaning whatever.

5. It appears to us obvious that Section 141 as now enacted is intended to include all proceedings in any Court of civil jurisdiction, proceedings in execution being such proceedings. That being so, the section under which the Munsif alone could have dismissed the case for default namely Section 102 of the old Code or Rule 9, Order IX of the present Code must be applicable ; and if Rule 9, Order IX is applicable then there appears to us to be no reason why the petitioner should not take the shortest way to obtain relief from the order he complains of, namely, that by way of re-hearing. Order XXI, Rule No. 103, does not say that this right to apply for a re-hearing is barred. It merely says that he may institute a suit if he chooses. We are of opinion that the Munsif distinctly declined to exercise a jurisdiction which was vested in him and we, therefore, make the Rule absolute, set aside the order, and direct that he do hear the application for re-hearing on its merits.

6. This order will carry costs, two gold mohurs.


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