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Bhola Nath De Vs. Naishimha Prosad and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal552,76Ind.Cas.533
AppellantBhola Nath De
RespondentNaishimha Prosad and ors.
Cases ReferredBepin Behari Saha v. Abdul Barik
Excerpt:
civil procedure code (act v of 1908), order ix, rule 13 - application to set aside ex parte decree dismissed in default--application to set aside order of dismissal, whether competent. - .....the appeal to be dismissed for non-prosecution. i think it is very doubtful whether, in these circumstances, the munsif had jurisdiction to grant the second application under order ix, rule 13, civil procedure code. but i do not feel confident that that is so. it follows, therefore, that i have to fall back in the main upon the consideration whether the case is one in which a discretionary remedy should be exercised. on the facts stated in the petition, the plaintiff has been put to considerable annoyance and i must confess to some astonishment that the learned munsif by his judgment of the 10th july directed that both parties should pay their own costs. unless the circumstances were very different from those dose described in the petition, i should have thought that the case was.....
Judgment:

Walmsley, J.

1. This Rule was obtained by the plaintiff. After frequent adjournments, he obtained a decree ex parte against the defendants in a suit for specific performance of a contract. The defendants thereupon made an application under Order IX, Rule 13, Civil Procedure Code, which in its turn was dismissed for default. On the 7th January 1922, the defendants filed a second petition under Order IX, Rule 13 for the purpose of setting aside the order dismissing the former application under Order IX. Rule 13, and, on the same date, they filed an appeal to the District Judge's Court against the order dismissing the first application under Order IX, Rule 13, Civil Procedure. Code, Eventually, the defendants allowed their appeal to be dismissed for non-porosecution and persuaded the Munsif to set aside the order dismissing the first application under Order IX, Rule 13. On behalf of the plaintiff it is contended, first, that there cannot be an application under Order IX, Rule 13 to set aside an order passed in a preceding application of the same nature, The second objection is, that the Munsif was not competent to deal with the second application on the ground that an appeal had been filed against his decision on the former application.

2. So far as the first question is concerned; I am bound to follow the decision of a Bench of this Court in the case of Bepin Behari Saha v. Abdul Barik 35 Ind. Cas. 613 : 44 C. 950 : 21 C.W.N. 30 : 24 C.L.J. 446 in accordance with which, apparently, proceedings under Order IX, Rule 13 may go on ad infinitum. It is pointed out that the Patna High Court has taken a different view. But it is not open to me to follow that decision when there is a clear authority in this Court in the opposite direction.

3. As to the second point, I feel more doubt. The defendants had two remedies and, if they had to file an appeal at all, they had to file it before the application had been disposed of. But they allowed the appeal to be dismissed for non-prosecution. I think it is very doubtful whether, in these circumstances, the Munsif had jurisdiction to grant the second application under Order IX, Rule 13, Civil Procedure Code. But I do not feel confident that that is so. It follows, therefore, that I have to fall back in the main upon the consideration whether the case is one in which a discretionary remedy should be exercised. On the facts stated in the petition, the plaintiff has been put to considerable annoyance and I must confess to some astonishment that the learned Munsif by his judgment of the 10th July directed that both parties should pay their own costs. Unless the circumstances were very different from those dose described in the petition, I should have thought that the case was one in which the restoration of the application should have been made on terms. However, that is a matter which can be considered when the Munsif comes to deal with the restoration of the original suit from which the subsequent proceedings arose.

4. The Rule is discharged; but in the circumstances of the case, I decline to make any order as to costs in favour of the opposite party.


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