Asrob Ali Laskar and Others vs Manuhar Ali Majumdar and Others

Deka, J.—This is a Rule issued at the instance of the Petitioners against an Appellate order passed by the Additional District Judge, U.A.D. whereby he set aside the order passed by the Munsiff of Hailakandi in a partition suit. The order passed by the learned Munsiff was on a petition filed by the present set of Petitioners under Order 9, Rule 13 of the CPC for setting aside the final decree passed in the Original suit for partition and their contention was that after the preliminary decree, the Plaintiffs opposite party made an application to the Court for stay of further proceedings on the ground that they were going to prefer an appeal against the allotment and an order was accordingly passed in compliance with that prayer on 18-3-49 but the Plaintiffs instead of preferring an appeal made an application to the Munsiff on 10-6-50 being petition No. 80, for appointing a new ''amin'' and getting the allotments made and the Plaintiffs secured an ''ex parte'' final order on 15-7-50 without any notice on the contesting Defendants who are Petitioners in this Court. The Petitioners alleged that they came to know of. this final decree only on 4-6-51 and within one month of that date filed an application to the Court for setting aside the ex parte decree obtained by the Plaintiffs and the learned Munsiff held that the ''ex parte'' decree dated 15-7-50 was secured by the Plaintiffs in contravention of the previous order of stay and presumably without drawing the attention of the Munsiff to the previous order on record. The learned Munsiff interpreted it as a mistake on the part of the Court and set aside the ex parte decree purporting to act under Order 9, Rule 13, CPC and the inherent powers of the Court as provided u/s 151 , CPC There was an appeal against this order of the Munsiff by the Plaintiffs and the learned Additional District Judge set aside the order of the Munsiff mainly on the ground that the petition for setting aside the ex parte decree was time-barred inasmuch as it was not presented within one month from the date of the final decree.

The main contention of the learned Advocate for the Petitioners before us is that no appeal was competent against the order setting aside the ex parte decree. Order 43, Rule 1(d), CPC provides that an appeal is competent only against the order refusing to set aside an ex parte decree and not an order allowing the prayer for setting aside the ex parte decree. In this view, it is obvious that the learned Additional District Judge had no jurisdiction to entertain an appeal and he ought to have rejected the appeal as incompetent. Consequently we must hold that the order of the learned Additional Judge was passed without jurisdiction and must be set aside.

Mr. Ghose for the opposite party contended that in view of the fact that the application for setting aside the ex parte decree was made nearly one year after the original decree was passed, the learned Munsiff ought not to have entertained the application and should have held it time-barred. In that case, the remedy of the opposite party lay in making an application u/s 115, CPC to this Court direct against the order of the Munsiff and in view of the fact that no such application was made we find no reasonable ground to entertain this objection. The circumstances further point to the fact that the order of the ex parte decree was obtained without making a proper disclosure of the facts before the learned Munsiff and the Munsiff was quite justified in interfering with the order of the ex parte decree. The Rule is therefore made absolute, but we make no order as to costs.

Ram Labhaya, Ag. C.J.

I agree.