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Khetro Mohan Mitter Vs. Nalini Bala Dassi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1927Cal867
AppellantKhetro Mohan Mitter
RespondentNalini Bala Dassi
Cases ReferredRakshab Mandal v. Tarangini Deyi A.I.R.
Excerpt:
- .....who appears for the appellant conceded and contended that the order under review was made by the learned district judge, and could only have been made by the learned district judge, in the exercise of the inherent powers which he contended the learned judge possessed under section 151, civil p.c. we are asked to interfere with the order under review. it is to be borne in mind that the learned judge would only be entitled to reverse the two orders of the 20th july and 5th september 1923, if in his opinion those two orders amounted to an abuse of the process of the court or it was necessary for the ends of justice that those two orders should be reversed. the learned district judge, after considering the matter, came to the conclusion thatit cannot be contended that a disclosure of the.....
Judgment:

Page, J.

1. This is a very simple case. The appellant challenges the validity of an order passed by the learned District Judge of 24-Pergannas of the 20th May 1925. The learned advocate who appears for the appellant conceded and contended that the order under review was made by the learned District Judge, and could only have been made by the learned District Judge, in the exercise of the inherent powers which he contended the learned Judge possessed under Section 151, Civil P.C. We are asked to interfere with the order under review. It is to be borne in mind that the learned Judge would only be entitled to reverse the two orders of the 20th July and 5th September 1923, if in his opinion those two orders amounted to an abuse of the process of the Court or it was necessary for the ends of justice that those two orders should be reversed. The learned District Judge, after considering the matter, came to the conclusion that

it cannot be contended that a disclosure of the order passed by the District Judge on the 5th April 1910, would have been sufficient for the Court to stay its hands in the matter of dealing with the application for permission to sell.

2. He further came to the conclusion that there was no necessity for him to exercise any inherent power which he might possess for the purpose of abrogating the two orders to which objection was taken, because another remedy was open to the applicant. In my opinion, he was quite right in the view which he took of the position. The learned advocate for the appellant contended - contrary I think, to his own conviction - that the validity of the two orders of the 20th July and 5th September 1923, and the sale by the administrator which followed from them, could not be challenged in a suit upon the ground that they had been obtained by fraud. He cited two authorities in support of his contention the earlier of which is the case of Chuni Lal Haldar v. Mahshada Debi [1919] 23 C.W.N. 652 in which case the Court left the matter open, and the latter of which is the case of Rakshab Mandal v. Tarangini Deyi A.I.R. 1921 Cal. 332, in which case the Court appears to have been of opinion that under such circumstances a suit would lie.

3. The result is that, in my opinion, the present attempt to induce the Court to reverse the decision of the learned District Judge of the 30th May 1925, whether the present proceeding is to be regarded as an appeal or as an application under Section 115 is misconceived, and both the appeal and the application are dismissed with costs, the hearing-fee being assessed at two sold mohurs.

Graham, J.

4. I agree. The learned District Judge appears to have been of the opinion that the application before him could not be entertained under the Probate and Administration Act. It seems to me that, in so holding, the learned District Judge was in error and that by virtue of Section 53, Probate and Administration Act, he had jurisdiction to deal with the matter with reference to Section 151, Civil P.C. It appears to be conceded that the order must be deemed to have been one under that section. If that is so, then no appeal lies as the order under Section 151 is not one of the orders appealable under Order 43, Civil P.C. The appeal, therefore, must be dismissed.

5. An application for revision has also been filed before us under Section 115, Civil P.C. But, in my judgment, the facts are not of such a nature as to justify our interference in the exercise of our revisional jurisdiction, and the appellant must seek his remedy elsewhere.


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