1. The facts which have given rise to the present application are these.
2. One Umed Ali applied under Order XXI, Rule 90, Civil Procedure Code, in the Court of the 6th Mansif at Comilla for setting aside a sale, and during the pendency of the said proceedings died on the 18th July, 1920. On the 21th July, 1920, the death was reported to the Court, and the learned Munsif made a note of it in the order-sheet. Thereafter on five different dates the proceedings were adjourned, on the ground that the heirs had not been made parties and six months had not yet elapsed from the date of death. On the 5th February, 1921, one of the dates to which the case was adjourned, an application for substitution was made on behalf of the heirs and legal representatives of Umed Ali and the same was allowed. It does not appear whether the opposite party were present on that date or not, but on none of the dates to which the case was subsequently adjourned, was any objection taken to the order for substitution that had been made, and the proceedings went on with the result that the learned Munsif set aside the sale by an order passed on the 18th February, 1922. The opposite party preferred an appeal to the District Judge of Tippera and the learned District Judge set aside the Munsif's order and dismissed the application for setting aside the sale, on the ground that the application had as a matter of fact abated by reason of the death of Umed Ali and the application for substitution was incompetent and the substitution had been wrongly allowed. The petitioners have thereupon moved this Court and obtained the present Rule to show cause why the order of the District Judge should not be set aside and that of the Munsif restored or why such other or further orders should not be passed as to this Court may seem fit.
3. We have heard the parties and considered the facts and circumstances of the case in so far as they bear upon the present Rule. The learned District Judge was undoubtedly right in his view of the law that the proceedings had automatically abated on the 18th January, 1921 under Order XXII, Rule 3, Civil Procedure Code, and no application for substitution could be entertained after that date, but the petitioners by presenting a proper application under Order XXII, Rule 9(2), Civil Procedure Code, and only by showing sufficient cause could obtain an order setting aside the abatement. We think, however, that by reason of the application for substitution being readily allowed by the learned Munsif and no objection having been taken by the opposite party at any stage of the protracted proceedings that followed in his Court, the petitioners were deprived of an opportunity to make an application under Order XXII, Rule 9(2) of the Code, and they were misled by the course of the proceedings that were adopted. The order passed by the learned District Judge reversing the decision of the learned Munsif and dismissing the application for setting aside the sale has also not given the petitioners any such chance, and; as matters stand, they are altogether without any remedy.
4. It has been pressed on us on behalf of the opposite party that our powers of interference under Section 115, Civil Procedure Code, are very limited. In my opinion the case does not fall within Clause (a) or (b), but under the first part of Clause (c) of that section. 'Acting illegally' in that clause does not merely imply the committing of an error of procedure such as 'acting with material irregularity' does. In my opinion this part of the clause was advisedly left in indefinite language in order to empower the High Courts to interfere and correct gross and palpable errors of subordinate Courts, the justification for the interference being determined upon the grossness and palpableness of the error complained of and upon the gravity of the injustice resulting from it. In the present case, in my opinion, injustice has been done to the petitioners.
5. The question then is what should be our order. Having regard to the fact that the petitioners are all minors, with the exception of one who is their guardian and who is said to be a pardanashin Mahomedan lady and who, as far as can be made out, is also illiterate, an application on their behalf under Order XXII, Rule 9(2). Civil Procedure Code stands a good chance of succeeding. I would, therefore, treat the order for substitution as being one setting aside the abatement, and would set aside the order of the learned District Judge and remit the appeal to him to be dealt with on the merits. No order is made as to the costs of this Rule.
6. I agree.