JUDGMENT
R.K. Manisana, J.
1. This revision petition arises from an order dt. 14-3-88 passed by the learned Sub Judge (I) setting aside the order of dismissal of Original Suit No. 39/85/13/88 for default of plaintiffs’ appearance.
2. The suit was instituted by seven (7)
plaintiffs against four (4) defendants. The suit was dismissed on 23-6-87 for default of plaintiffs’ appearance. Thereafter an application was filed for setting aside the order of dismissal. Defendants 1 and 3 received the notice of the application for restoration of the suit. It is slated at the Bar that the defendant 4 did not receive the notice. There is also no service report whether the summons on defendant 4 has been served or riot. As regards the defendant 2, the service report of the process server, is that the summons on defendant 2 could not be served as he died about a year ago. The report is dt. 18-4-88. The admitted position is that the defendant 2 Bharat Prasad Gupta died on 17-10-86 and that no legal heir or legal representative was brought on record. However, the learned Sub Judge dismissed the suit on 23-6-87 and allowed the petition for restoration of the suit by an order dt. 14-3-88 on payment of Rs. 35/- as costs. Hence this petition.
3. Mr. N. K. Singh, the learned counsel for the respondents, has raised a preliminary objection as to the maintainability of the petition. The learned counsel has submitted that the petitioners cannot challenge the order of restoration as the petitioners have waived their right to challenge the order by receiving the costs. He has referred me to the decisions in Dhrubendra Deb v. Kumarendra, AIR 1959 Cal 19 and Metal Press Works v. Guntur Merchants Cotton Press, AIR 1976 Andh Pra 205 to support his contention.
4. In Dhrubendra Deb v. Kumarendra, AIR 1959 Cal 19, it has been held (at pp. 20-21):
“Consideration of these cases shows clearly that the rule that if a party adopts an order of a court and takes a benefit thereunder, he cannot be allowed to challenge the correctness of the order, has been consistently laid down in this Court. Whether in a particular case the facts justify the conclusion that a party has adopted the order by taking the benefit or not will depend necessarily on the nature of the order and other circumstances. In the present case, the order passed was a conditional order that on deposit of certain amounts into Court the review petition will
be allowed and the appeal restored to file. The only basis for the plaintiffs’ applying for payment and receiving the payment order through their agent is that the order that had been passed was a correct, valid and acceptable order; but for that there could be no scope for their applying for such payment. It must therefore be held that they adopted the order and received the benefit thereunder and having elected to treat the order as valid they cannot now be allowed to challenge the order in apepal.”
(Ephasis added)
5. In Metal Press Works v. Guntur Merchants Cotton Press, AIR 1976 Andh Pra 205, it has been held (at pp. 224-225) :
“As pointed out earlier, the amendment for the written statement was allowed on June, 30, 1969 on payment of Rs. 30/- as costs to the respondent-plaintiff. The order of the trial court permitting the amendment of the written statement was, therefore, a conditional one….. The conditional order passed by
the trial court granting the amendment of the written statement must be regarded as an entire whole giving a benefit in one respect to the plaintiff and in another respect to the defendant…..The acceptance of costs
in a conditional order would bar or prevent such party from questioning the jurisdiction or validity of the order granting amendment. In the circumstances, it must be held that the respondent-plaintiff was satisfied with the conditional order and, therefore, it must be deemed to have accepted the same and it is not open to it to challenge the same in this Court. We, therefore, hold that the awarding of costs to the plaintiff is, in fact and substance, a part of the entire order and the plaintiff who accepted a part of the same relating to award of costs is barred from attacking the rest of the order pertaining to the amendment .fo the original written statement which is against him.”
6. With respect, I am in full agreement with the above decisions and observations. Accordingly, it is held that where the application for restoration was allowed subject to the payment of the costs of the defendant, the ^party who accepts either directly or through his cousnel the costs awarded in a
conditional order, is precluded or barred from attacking the validity of the portion of the order with which he is aggrieved.
7. Turning to the present case, the suit was restored on payment of Rs. 35/- as costs. Therefore, the order was a conditional order. The counsel of the present petitioners received the costs. Applying the above principle, the petitioners are precluded from challenging the impugned order.
8. Mr. Ibobi Singh, the learned counsel for the petitioners, has further submitted that although the petitioners are precluded from challenging the impugned order, the power of judicial superintendence of the High Court is required to be invoked on the facts and in the circumstances of the present case.
9. The order dt. 23-6-87 shows that defendants were present by their counsel and the plaintiffs were absent. As already stated, summons on defendant 3 was not served and that defendant 2 was dead. No valid order could be passed against the defendant 2 as at the time when the order was passed the defendant 2 was dead. Once the Court issued notices to the defendants, it should have examined whether notices had been returned after due service. As already stated, defendant 2 died on 17-10-86 when the order for dismissal was passed on 23-6-87. The lower Court has failed to look into this matter whether he could pass a valid order on the facts and in the circumstances of the case. Therefore, the way the learned Sub Judge dealt with the matter cannot be appreciated.
10. The question which, therefore, arises for consideration is whether the power of judicial superintendence is to be invoked. The power of judicial superintendence is an extraordinary one and intended to be used in the exceptional cases, and not as a substitute for ordinary revisional or appellate jurisdiction. Before dismissal of the suit for default of plaintiffs’ appearance, the suit, in so far as defendant 2 is concerned, has abated. Whether the suit has abated as a whole or not is a different question. This revision petition has been filed by two defendants who received the notices and the learned counsel for the
defendant 4 who has appeared before this Court states that the defendant 4 has no grievance against the impugned order. On the facts and in the circumstances of the case I am not inclined to invoke the power of judicial superintendence in the present case.
In the result, the petition is dismissed No costs.