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Biswambhar Mirdha and anr. Vs. Sarup Chandra Gain - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in1Ind.Cas.136
AppellantBiswambhar Mirdha and anr.
RespondentSarup Chandra Gain
Excerpt:
civil procedure code (act xiv of 1882), sections 108 and 623 - ex parte proceedings, setting aside of--revival of suit--jurisdiction of first court after appellate court's decree. - .....the munsiff 's judgment and decree must be set aside on the ground that he had no jurisdiction to revive the suit on the application of the defendants nos. 3 and 4, who are the appellants in this court. we have heard the learned pleader in support of this point and we are of opinion that the point cannot be supported. the original suit was brought in the munsiff's court against all the defendants, it was contested only by the defendants nos. 1 and 2 and was dismissed. possibly, if the application for review had then been made to the munsiff, it would have been in his power to revive the case as against the defendants nos. 3 and 4, on the ground that they had not been served with notice of the suit. but, after the decision by the munsiff, the suit went on appeal to the lower appellate.....
Judgment:

1. The only point taken in support of the appeal is that the lower Appellate Court erred in law in holding that the Munsiff 's judgment and decree must be set aside on the ground that he had no jurisdiction to revive the suit on the application of the defendants Nos. 3 and 4, who are the appellants in this Court. We have heard the learned Pleader in support of this point and we are of opinion that the point cannot be supported. The original suit was brought in the Munsiff's Court against all the defendants, It was contested only by the defendants Nos. 1 and 2 and was dismissed. Possibly, if the application for review had then been made to the Munsiff, it would have been in his power to revive the case as against the defendants Nos. 3 and 4, on the ground that they had not been served with notice of the suit. But, after the decision by the Munsiff, the suit went on appeal to the lower Appellate Court. In that Court, the defendants Nos. 3 and 4 were made parties respondents, and after they had been made parties and a decree had been passed against them by that Court, the Munsiff certainly had no jurisdiction to revive the suit, the result of which would have been to set aside or interfere with the decree of a Court of higher jurisdiction. We think, therefore, that the appeal fails and must be dismissed with costs.


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