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Sheik BasiruddIn Vs. Sheik Sadhu Tanti - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in45Ind.Cas.690
AppellantSheik Basiruddin
RespondentSheik Sadhu Tanti
Cases ReferredDamodar Misra v. Hirnashi Naik
Excerpt:
civil procedure code (act v of 1908), order ix, rule 13, order xliii, rule 1(d) - compromise decree, application to set aside, by person not party to decree, nature of--application rejected--appeal, whether lies. - .....been held in the cases of koroona moyee dossee v. nubo kishore 6 w.r. mis. 36 and bholai naskar v. alach naskar 3 c.l.j. 158. that it is open to the court to deal with such an application as an application to set aside an ex parte decree. the case of hemmo mayee dayee v. watson and co. 14 w.r. 299. has perhaps an opposite tendency but that case was distinguished in the case of bholai naskar v. alach naskar 3 c.l.j. 158. the subsequent case, however, of damodar misra v. hirnashi naik 27 ind. cas. 227 : 19 c.w.n. 118. is in direct conflict with the decision in bholai naskar v. alach naskar 3 c.l.j. 158. it was held in damodar misra's case 27 ind. cas. 227 : 19 c.w.n. 118 that a petition to set aside a consent decree, obtained in circumstances similar to those which exist in the present.....
Judgment:

Richardson, J.

1. The petitioner in this Rule brought a suit against the opposite party and others. In that suit a petition of compromise was filed, to which the opposite party was apparently a party. Accordingly a consent decree was made founded on the petition. When the petitioner took steps to execute the decree, the opposite party applied to the trial Court to set aside the decree on the ground that as against him it was an ex parte decree. The learned Munsif on the merits refused the application. The opposite party then appealed to the District Judge, who took a different view of the facts and set aside the decree by hia order of the 4th January 1918. That order is the subject-matter of this Rule. It is contended that the proceedings were not proceedings under Order IX, Rule 13, as they purport to be and that the appeal was incompetent.

2. Now it is not disputed that it was open to the opposite party to apply to the trial Court to set t aside the compromise decree on the ground that he was no party thereto and that he had given no authority to file the petition of compromise. The question is, what is the nature of such an application. Is it an application to the Court in its inherent jurisdiction or is it an application within the scope of Order IX, Rule 13. It appears to have been held in the cases of Koroona Moyee Dossee v. Nubo Kishore 6 W.R. Mis. 36 and Bholai Naskar v. Alach Naskar 3 C.L.J. 158. that it is open to the Court to deal with such an application as an application to set aside an ex parte decree. The case of Hemmo Mayee Dayee v. Watson and Co. 14 W.R. 299. has perhaps an opposite tendency but that case was distinguished in the case of Bholai Naskar v. Alach Naskar 3 C.L.J. 158. The subsequent case, however, of Damodar Misra v. Hirnashi Naik 27 Ind. Cas. 227 : 19 C.W.N. 118. is in direct conflict with the decision in Bholai Naskar v. Alach Naskar 3 C.L.J. 158. It was held in Damodar Misra's case 27 Ind. Cas. 227 : 19 C.W.N. 118 that a petition to set aside a consent decree, obtained in circumstances similar to those which exist in the present case, could not be treated as a petition under Order IX, Rule 13. Speaking for myself, if there had been no previous decisions, I should have preferred to adopt the view expressed in that case by Mr. Justice Stephen and Mr. Justice Mullick. The previous cases, however, were apparently not brought to their notice. There is also this to be said that the case of Bholai Naskar v. Alach Naskar 3 C.L.J. 158 has been cited with approval in the subsequent cases of Kunjo Behari Ghose v. Durgamoni Dassi 3 C.L.J. 160 at p. 163. and Golab Koer v. Badshab Bahadur 2 Ind. Cas. 129 : 130. W.N. 1197 : 10 C.L.J. 420 at p. 440. In the circumstances regard being had to the state of the authorities on a question which is one of procedure and not of principle, I think we ought to follow the decision in the case of Bholai Naskar v. Alach Naskar 3 C.L.J. 158. If the application to the Munsif was capable of being dealt with under Order IX, Rule 13, then an appeal lay to the District Judge from the Munsif's order rejecting the application and the District Judge's order cannot be successfully challenged on the merits. We cannot go behind the District Judge's finding.

3. The result, therefore, is that this Rule must be discharged with costs, one gold mohur.

4. Walmsley, J.--I agree that the Rule should be discharged. I only wish to add that I do not share my learned brother's preference for the view expressed in the case of Damodar Misra v. Hirnashi Naik 27 Ind. Cas. 227 : 19 C.W.N. 118.


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