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Gopal Krishna Naba Krishna Raj Krishna Saha Vs. Chintaharan Mazumdar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1941Cal254
AppellantGopal Krishna Naba Krishna Raj Krishna Saha
RespondentChintaharan Mazumdar and anr.
Excerpt:
- .....the suit was decreed on 5th may 1939, and on 5th june, an application for setting aside the ex parte decree was taken out. eventually the ex parte decree was set aside on 12th january 1940, and i naturally have to consider this application on the basis that the defendant showed good cause for having the ex parte decree set aside. at the time of setting aside the decree the learned judge who dealt with the application directed the defendant to file his written statement within three weeks. this he did not do, and on 12th february, the plaintiffs' attorney wrote to the registrar asking him to transfer the suit to the undefended list, and at the same time he forwarded a copy of his letter to the registrar to the attorney who was then acting for the defendant. nothing was done by that.....
Judgment:
ORDER

Panckridge, J.

1. I do not consider I should be justified in granting this application except on the terms that the sum claimed should be paid into Court or to the plaintiffs' attorney, which condition the defendant says he is unable to comply with. The suit was decreed on 5th May 1939, and on 5th June, an application for setting aside the ex parte decree was taken out. Eventually the ex parte decree was set aside on 12th January 1940, and I naturally have to consider this application on the basis that the defendant showed good cause for having the ex parte decree set aside. At the time of setting aside the decree the learned Judge who dealt with the application directed the defendant to file his written statement within three weeks. This he did not do, and on 12th February, the plaintiffs' attorney wrote to the Registrar asking him to transfer the suit to the undefended list, and at the same time he forwarded a copy of his letter to the Registrar to the attorney who was then acting for the defendant. Nothing was done by that attorney and the suit appeared on the undefended list on 26th February 1940 and an ex parte decree was made which the defendant now seeks to set aside.

2. The only ground for making the application is that he received no intimation of the result of his former application which was dealt with on 12th January, although while it was pending, he says, he sent letters to his attorney asking for information as to the fate of the application. He says, the first matter which put him on inquiry was the receipt of a letter from his attorney dated 16th February, enclosing a copy of the letter from the plaintiffs' attorney in which he announced his intention to apply for the transfer of the suit to the undefended list. The applicant says he did not receive his own attorney's letter which I have just said was dated 16th February, until 28th February, or two days after the suit had been decreed. He then came down to Calcutta and obtained a change of attorney. He has exhibited an envelope and found on it the submission that the delay in the delivery was due to the fact that it was insufficiently addressed, or wrongly addressed, and the postmarks on the back of the envelope certainly indicate that the letter wandered round the district for a considerable period. The last postmark is of 27th February 1940.

3. I find it very difficult to believe that the defendant's former attorney did not intimate to him the result of the first application and the order directing the filing of the written statement within three weeks from 12th January. It does not appear that the defendant had made any inquiries from his former attorney as to whether any intimation was sent; possibly, if he could show either that it had not been sent, or had been wrongly addressed and therefore not delivered, his position would be a stronger one. As to this there is no evidence at all. It may be that if his attorney failed to inform him about what happened on 12th January, he is liable for damages in a suit for negligence. As to that I express no opinion. I am by no means convinced that the failure of the defendant to obtain information, if in fact he has not obtained it, was not due to his own deliberate action in not seeing that informations were sent to him. In my view, I consider that he has failed to make out sufficient grounds for setting aside the decree of 26th February, and this application is accordingly dismissed with costs.


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