Ambica Charn Khaskel vs Esmail and Others

Newbould, J.—The opposite party applied to set aside an auction sale. That application was dismissed in default. He then applied to set aside the order of dismissal. The latter application was also rejected. He then appealed to the Subordinate Judge, Second Court, Bakergunge. He decreed the appeal and ordered a re-hearing of the case arising out of the application to set aside the auction sale. It is clear that the decisions of this Court support the contention of the petitioner that no appeal lay, The case of Charu Chandra Ghosh v. Chandi Charan Roy Chowdhury 27 Ind. Cas. 492 : 19 C.W.N. 25, clearly supports this proposition. The learned Subordinate Judge relies on the case of Bhuban Behari Nag Mazumdar v. Dhirendra Nath Banerjee 33 Ind. Cas. 581 : 20 C.W.N. 1203. But in that case to which I was party, although we expressed some doubt as to the correctness of the previous decisions, we held that the view that no appeal lay in such a case had been taken in a series of oases ending with the case which I have just sited. Sitting alone I am bound to follow the previous decisions of the Divisional Benches and could not, even if I would, make a reference to the Full Bench on this point.

I accordingly make this Rule absolute and set aside the order of the Subordinate Judge allowing the application of the opposite party and directing a re-hearing of the case.