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Adar Mani Namasundrani and anr. Vs. Purna Chandra Malagi and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in95Ind.Cas.704
AppellantAdar Mani Namasundrani and anr.
RespondentPurna Chandra Malagi and ors.
Cases ReferredBasaratullah Mean v. Reazuddin Mean
Excerpt:
c.p.c. (act v of 1908), order xxi, rule 90 - application to set aside sale--dismissal for default--application for restoration, refusal of--appeal, whether lies. - .....appeal from an order passed by the munsif refusing to restore an application made by the judgment-debtor opposite party under order xxi, rule 90, c.p.c., which was dismissed for default. the contention on behali of the judgment-debtor opposite party is that there was such jurisdiction as is held in some of the reported cases in this court. but, in my opinion, the matter is concluded bv authority. the case of thakur prasad v. fakirulla 22 i.a. 44 : 17 a. 106 : 5 m.l.j. 3 : 6 sar. p.c.j. 526 : 8 ind. dec. (n.d.) 393 (p.c) is against such a contention. i have been a party to several decisions in which the ruling referred to above has been applied and it has been held that in such case no appeal is allowed under order xliii, rule 1 (c), c.p.c. the cases have again been considered in the.....
Judgment:

B.B. Ghose, J.

1. In this case, the question is whether the lower Appellate Court had jurisdiction to entertain an appeal from an order passed by the Munsif refusing to restore an application made by the judgment-debtor opposite party under Order XXI, Rule 90, C.P.C., which was dismissed for default. The contention on behali of the judgment-debtor opposite party is that there was such jurisdiction as is held in some of the reported cases in this Court. But, in my opinion, the matter is concluded bv authority. The case of Thakur Prasad v. Fakirulla 22 I.A. 44 : 17 A. 106 : 5 M.L.J. 3 : 6 Sar. P.C.J. 526 : 8 Ind. Dec. (N.D.) 393 (P.C) is against such a contention. I have been a party to several decisions in which the ruling referred to above has been applied and it has been held that in such case no appeal is allowed under Order XLIII, Rule 1 (c), C.P.C. The cases have again been considered in the case of Basaratullah Mean v. Reazuddin Mean 96 Ind. Cas. 705 : 30 C.W.N. 570 : A.I.R. 1926 Cal. 773 : 53 C. 679, where the learned Judges have held that no right of appeal is allowed by the law in such cases In such circumstances, I must hold that the appeal entertained by the lower Appellate Court was without jurisdiction.

2. The case itself is a very strange one The sale took place in August, 1918. The application for setting aside the sale was made in July, 1923. The application continued pending in the Court till 15th March, 1924, and then the opposite party being absent, it was dismissed for default. This ia pre-eminently a case in which the revisional jurisdiction of this Court should be exercised in setting aside the decision of the lower Appellate Court ordering the re-hearing of the application of the judgment-debtor opposite party.

3. The Rule is made absolute. The judgment-debtor opposite party must pay the costs of the petitioners in this Court. The hearing fee is assessed at one gold mohur.


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