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Hem Sankar Roy Choudhury Vs. Nishi Kanta Das Gupta and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1925Cal430
AppellantHem Sankar Roy Choudhury
RespondentNishi Kanta Das Gupta and ors.
Excerpt:
- .....1921. that petition was stated to be made under order 9, rule 9, order 47, rule 1 and section 151, civil procedure code. the learned subordinate judge, as appears from the order-sheet, treated the petition as being one under section 151 only and thereupon decided that section 151 was not applicable and that therefore the petition should be rejected.2. from that order an appeal has been filed in this court; and an application has also been filed under section 115, civil procedure code.3. various points have been argued before us as to whether the application appealed from was one under order 9, rule 9, read with section 141, civil procedure code, or whether it could be taken as an application made under section 151, civil procedure code.4. a preliminary objection is also raised as to.....
Judgment:

Pearson, J.

1. In this matter the parties arrived at a compromise in a suit between them while the suit was in the appellate Court, and an order was made in terms of the compromise. The decree was not actually drawn up but the judgment was apparently signed. The judgment was said not to be in accordance with the terms of the compromise and accordingly an application was made for a review with the idea of putting the judgment and decree into an accurate form. The application for review name on for hearing on the 5th of December, 1921. The applicant was not ready and applied for summonses on his witnesses. This, however, was refused and thereupon the application was dismissed for default on the same day. On the 21st of December, 1.921, a petition was filed for restoration of the review application which had been previously dismissed on the 5th of December, 1921. That petition was stated to be made under Order 9, Rule 9, Order 47, Rule 1 and Section 151, Civil Procedure Code. The learned Subordinate Judge, as appears from the order-sheet, treated the petition as being one under Section 151 only and thereupon decided that Section 151 was not applicable and that therefore the petition should be rejected.

2. From that order an appeal has been filed in this Court; and an application has also been filed under Section 115, Civil Procedure Code.

3. Various points have been argued before us as to whether the application appealed from was one under Order 9, Rule 9, read with Section 141, Civil Procedure Code, or whether it could be taken as an application made under Section 151, Civil Procedure Code.

4. A preliminary objection is also raised as to whether an appeal could lie from an order of this kind. For the purpose of the present proceedings it seems to me that all that is necessary to decide is that having regard to the provisions of Order 47, Rule 7 the order itself is not appealable, but having regard to the fact that the learned Judge has apparently dealt with the matter only upon the footling of Section 151 I think that the jurisdiction of this Court ought to be exercised under Section 115 and the learned Subordinate Judge should re-hear the matter considering the whole basis of the application and not only Section 151 or the Particular sections or orders of the Civil Procedure Code which have been specified in the petition but also any other provisions that are to be found in that Code which might entitle the applicant to the relief he claims. In particular our attention has been drawn to the provisions of Order 47, Rule 7, Sub-rule 2 which provides a specific procedure in the case of rejection of au application for a review in consequence of the failure of the applicant to appear. That specific procedure being laid down by the Civil Procedure Code it has been very reasonably argued that in that event it is unnecessary to look to the other provisions of the Code, either Section 141 or Order 9, or Section 151 to seek for any other procedure that might otherwise be applicable under its provisions. But that is a matter upon which undoubtedly the applicant might be entitled to rely in connection with the present application. I only mention it because I think it is a matter to which the learned Subordinate Judge might well direct his attention. If necessary he should allow the applicant to amend his petition to that extent by inserting Order 47, Rule 7, amongst the provisions of the Civil Procedure Code under which he purports to make his application.

5. That being so I think the appeal ought to be allowed; under the circumstances of the case it is not necessary to make any order as to costs.

Graham, J.

6. I agree.


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