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Rahamatunnessa Khanam Choudhurani and ors. Vs. Nawab Syed Abdul Sobhan Choudhury and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal125(1),49Ind.Cas.745
AppellantRahamatunnessa Khanam Choudhurani and ors.
RespondentNawab Syed Abdul Sobhan Choudhury and ors.
Excerpt:
civil procedure code (act v of 1908), section 115, order ix, rules 3, 13, order xliii, rule 1(d) - application to set aside ex parte decree, dismissal of, for default--application to restore application, dismissal of--appeal, whether lies--revision--high court, interference by. - .....succeed.2. the appeal is, therefore, dismissed without costs.3. nextly, with regard to the rule, we should consider whether this is a case in which we should interfere on the rule which has been granted ; and we think, amongst other grounds, there is the fact that the court has not addressed itself to the consideration of the case whether there was sufficient cause for the non-appearance of the petitioner. therefore it is open to us on this rule to interfere. we think that on the merits the order should be set aside. we accordingly set aside the order and direct that the application for setting aside the ex parte decree be restored.4. we make no order as to the costs of this rule.5. we should mention that the learned vakils on behalf of ahmed hossein choudhury, mahamed hossein.....
Judgment:

1. In this case there is both an appeal and a Rule, An objection has been taken that no appeal lies and I think that objection should succeed.

2. The appeal is, therefore, dismissed without costs.

3. Nextly, with regard to the Rule, we should consider whether this is a case in which we should interfere on the Rule which has been granted ; and we think, amongst other grounds, there is the fact that the Court has not addressed itself to the consideration of the case whether there was sufficient cause for the non-appearance of the petitioner. Therefore it is open to us on this Rule to interfere. We think that on the merits the order should be set aside. We accordingly set aside the order and direct that the application for setting aside the ex parte decree be restored.

4. We make no order as to the costs of this Rule.

5. We should mention that the learned Vakils on behalf of Ahmed Hossein Choudhury, Mahamed Hossein Choudbury and Nopr Mahamed Choudhnry and Syed Altaf Ali Choudhury lake exception to the order of substitution which has been made. This objection should have been taken before the case was argued. In any case it is not made out so far as this Rule is concerned.


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