Asutosh Mookerjee, J.
1. This is an application to vacate an order made by the late Chief Justice Sir Francis Maclean and myself on the 12th February 1906 in Appeal from Original Order No. 495 of 1904. That appeal was directed against an order of the Subordinate Judge of Monghyr, dated the 6th June 1S04, in the matter of an application for restitution in execution proceedings. The effect of the order of the Subordinate Judge was that the objection to the grant of restitution was overruled. The judgment of this Court which was delivered by the Chief Justice was as follows:
We think this case has fallen into a little confusion, possibly, speaking with all respect, by reason of the order made by a Division Bench of this Court; but let that pass. We suggested to the learned Vakil for the appellants that perhaps the best way to deal with the case would be that the appeal should be withdrawn, leaving it to the present appellants, who are the judgment-debtors and objectors, to bring a suit to recover possession of the property in dispute, the present decree-holders, respondents, undertaking that neither the present proceedings for restitution, nor the fact that the previous suit brought by the present appellants (No. 359 of 1900) was subsequently dismissed for non prosecution on the 5th of March 1903 shall in any sense be treated as a bar to any fresh suit which the present appellants may be advised to institute in relation to the disputed property. Both parties agreeing, we by consent make the order accordingly. We make no order as to the costs of this appeal.
2. This order was made in the presence of Mr. Digambar Chatterjee and Mr. Dwarkanath Chakrabarti who represented the appellants and of Dr. Rashbihari Ghosh, Manlvi Muhammad Yusoof and Mr. Haribhushan Mookerjee who represented the respondents The parties and their representatives thought that a satisfactory way had been found for the investigation of the matters in controversy. On the 19th April 1911 a suit was instituted, as contemplated by the order of this Court, in the Court of the Subordinate Judge at Mongbyr. The suit was tried on the merits and was dismissed on the 14th August 1912. The plaintiffs lodged an appeal in this Court on the 6th January 1913. The papers were printed in due course, and the appeal was set down for disposal before Fletcher and Richardson, JJ., on the 4th June 1915. The Court, of its own motion, raised the question, whether the suit could be maintained in view of the dismissal for non-prosecution on the 5th March 1903 of the suit of 1900. The question was not taken up at the instance of either party. The plaintiffs could not possibly raise a question as to the competence of their suit. The defendants, who had not raised any such objection in the trial Court and had obtained a decision on the merits in their favour, were anxious to have the dispute concluded by a pronouncement on the merits of the controversy by this Court. The Bench, however, notwithstanding the terms of the judgment of the 12th February 1906 and inspite of what had happened in the trial Court and what the litigant parties anxiously desired in this Court, proceeded to deal with the question of the maintainability of the suit, came to the conclusion that the suit was barred under Section 103 of the Civil Procedure Code of 1882 and dismissed it on that ground. Fletcher, J, stated explicitly that as the point was one for which the plaintiffs themselves were not responsible, he thought there should be no order for the costs of the appeal. The plaintiffs, thus baffled in their search after justice, have applied to me to rescind the order made by Sir Francis Maclean and myself on their appeal on the 12th February 1906 so that the appeal may be restored and heard on the merits. I feel no doubt that the application should be granted in the interest of justice.
3. I am not called upon to consider the correctness of the decision of Fletcher and Richardson, JJ. I assume for the purposes of this application that the order was right and appropriate. The position thus is that the matter in controversy between the parties has never been decided by this Court--not in 1906, because we were of opinion that it could be investigated by a separate suit, not in 1915 because another Division Bench of this Court took the view that the matter could not be investigated in a separate suit. The parties are in no way to blame for the embarrassing situation in which they now find themselves. The judgment of Sir Francis Maclean makes it abundantly clear that the suggestion first same from the Court that the matters in dispute should be investigated in a separate suit, and, as might be expected, it was accepted by both the parties. The result was that the appeal was not heard on the merits. This course was adopted on the assumption that the question could be investigated in a separate suit. That anticipation has not been realised. In such circumstances, the Court has inherent power to vacate the order to enable it to discharge the duty cast on it as a Court of Justice to determine the controversy between the parties. It would constitute a just reproach to the administration of justice by this Court, if a litigant were sent from post to pillar and from pillar to post without even ultimately obtaining a hearing on the merits of his case. In the events which have happened here, the maxim applies actus curise neminem gravabit, an act of the Court shall prejudice no one. This maxim is, in the language of Cresswell, J., in Breeman v. Tranah (1862) 12 C.B. 406 : 21 L.J.C.P. 214 : 16 Jur. 111, founded upon justice and good sense and affords a safe and certain guide for the administration of the law. It is the duty of a Judge to try the causes set down for trial before him, and the failure of the Court to decide a case after submission cannot be permitted to defeat the substantial rights of a litigant. There is thus no ascape from the conclusion that the order made by Sir Francis Maclean and myself on the 14th February 1906 should be vacated.
4. The opposite party has laid stress on the delay which has taken place in bringing this matter before the Court. The judgment of Fletcher and Richardson, JJ., was pronounced on the 4th June 1915. The application wan ready on the 20th December 1915, though it was not actually moved before me till the 1st September 1916. Mr. Dwarkanath Chakrabarti, who was in charge of the matter, has explained that though the papers were made ready, he really found it difficult to advise his clients as to the appropriate procedure, in view of the extraordinary circumstances of the case, which, he added, were unique in his long experience. He further stated that an additional difficulty was created by reason of the fact of the establishment of the High Court at Patna. Finally, the matter was mentioned to me in Court much earlier than the date on which it was actually heard. In all these circumstances, I thought that a Rule should be issued and I have heard nothing to change my opinion.
5. The result is that the Rule is made absolute and the order of the 12th February 1906 revoked. The consequence will be that Appeal from Order No. 495 of 1904 will stand restored to the file of this Court as an undisposed of appeal and will be heard by such Bench as may be appointed by the Chief Justice by virtue of the authority vested in him.
6. As regards the costs of this Rule, it has been argued by the opposite party that they are not responsible for what has happened; that they have been through-out ready and willing to submit to a decision on the merits by this Court, both in the appeal from original order and in the appeal from original decree; and that in view of the peculiar circumstances of the case, they were bound to enter appearance in this Rule. There is much force in these contentions and they point to the conclusion that the opposite party should have the costs of this Rule. We assess the hearing fee at five gold mohurs.
7. The records will be retained in this Court till the final disposal of the appeal.