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Shaikh Belait Ali and ors. Vs. Hari Prosad Moitra and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in91Ind.Cas.741
AppellantShaikh Belait Ali and ors.
RespondentHari Prosad Moitra and ors.
Cases ReferredAsad Ali Chowdhury v. Mohammad Hossain Chowdhury
Excerpt:
civil procedure code (act v of 1908), section 141, order ix, rule 13 - bengal tenancy act (viii of 1885), section 95--common manager, appointment of, application for--ex parte order--application to set aside order, whether maintainable. - .....on the ground that order ix, rule 13 had no application to proceedings for the appointment of a common manager under section 95 of the bengal tenancy act. the facts appear to be these the opposite party applied to the district judge of birbhum for the appointment of a common manager under section 95 of the bengal tenancy act. the petitioner wishing to file objections to the application engaged a certain pleader to appear for him. the learned pleader was unable to appear for the petitioner as he gave up his practice in birbhum and went to the sub-division of kissengunge in the district of purnea where he began to practice. the petitioner then endeavoured to instruct another pleader but was unable to instruct him in time. as no time was granted to him the matter was decided ex parte.....
Judgment:

1. This Rule is directed against an order of the learned District Judge of Birb hum refusing to entertain an application under Order IX, Rule 13, C.P.C., on the ground that Order IX, Rule 13 had no application to proceedings for the appointment of a common manager under Section 95 of the Bengal Tenancy Act. The facts appear to be these the opposite party applied to the District Judge of Birbhum for the appointment of a common manager under Section 95 of the Bengal Tenancy Act. The petitioner wishing to file objections to the application engaged a certain Pleader to appear for him. The learned Pleader was unable to appear for the petitioner as he gave up his practice in Birbhum and went to the Sub-Division of Kissengunge in the District of Purnea where he began to practice. The petitioner then endeavoured to instruct another Pleader but was unable to instruct him in time. As no time was granted to him the matter was decided ex parte against him on the 25th March 1925. He then filed an application under Order IX, Rule 13, C.P.C., on the 17th April 1925 for a review of the order of the 25th March. The learned District Judge rejected this application on the ground that Order IX, Rule 13 had no application to proceedings for the appointment of a common manager.

2. The petitioner has obtained the Rule and one of the grounds on which this Rule was issued was that Order IX, Rule 13 does apply to the case. Whether 0. IX, r! 13 does or does not apply to such proceedings would depend upon whether such proceedings come within the purview of Section 141 of the C.P.C. If Section 141 does apply to such proceedings then obviously Order IX, Rule 13 will also apply. As to whether proceedings in connection, with, the appointment of a common manager under Section 95 of the Bengal Tenancy Act do or do not come within the purview of Section 141 the question is concluded by authority. It is sufficient to refer to the case of Asad Ali Chowdhury v. Mohammad Hossain Chowdhury 36 Ind. Cas. 177 : 43 C. 986 : 20 C.W.N. 1009 which decides that such proceedings are proceedings of the nature of a suit and come within the purview of Section 141. That being so it is quite clear that Order IX, Rule 13 does apply to such proceedings.

3. In this view of the case the Rule is made absolute and the case will be sent back to the learned District fudge to he dealt with under the provisions of Order IX, Rule 13, C.P.C. The petitioner is entitled to the costs of this application. Hearing-fee one gold mohur.


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