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Calcutta High Court
Saradindu Mohan Mukerjee And Ors. vs Girish Chandra Tewari on 3 December, 1926
Equivalent citations: AIR 1927 Cal 511, 101 Ind Cas 334
Author: Mukerji


Mukerji, J.

1. This Rule had been issued to show cause why an order passed by the Munsif of Ranaghat, dated the 29th June 1926, and referred to in the petition upon which the Rule has been issued should not be set aside or such other or further orders passed as to this Court may seem fit and proper. It is not necessary to refer to the earlier proceedings that took place in connexion with the execution case out of which this Rule has arisen. We may begin for our present purposes from the 29th June 1926, the date on which the order in question was passed by the learned Munsif. On that day the learned Munsif disposed of certain proceedings that were pending before him for setting aside the sale which had taken place in the said execution proceedings. This order appears to have been passed sometime at about 4-30 in the afternoon. There is some controversy as to whether the pleader for the petitioner decree-holder was present in Court at that moment or not and it is fairly clear that the petitioner’s karpardaz was absent at the time. After setting aside the sale by the order to which I have already referred the learned Munsif proceeded then and there to pass an order calling upon the decree-holder to take steps, if any, at once, obviously meaning that the decree-holder was to ask for issue of fresh sale proclamation. The next order which appears on the order-sheet and bears the very same date runs in these words:

The decree-holder’s pleader Mr. S.C. Mitra was informed of the above order. He did not sign that order. No further step taken by the decree-holder. The execution case is dismissed for default.

2. As regards the question whether the decree-holder’s pleader was informed of the order or not and whether he refused to sign the order although it was shown to him, I do not think we need go into that matter at the present moment. The finding of the learned Subordinate Judge in the present case is that it has not been established that in point of fact the Court had personally asked the pleader to sign the order-sheet or to take steps – which was the interpretation that was sought to be put upon the order recorded by the learned Munsif. It may be taken for our present purpose5 that the pleader had information of the order which the learned Munsif had passed and that he did not sign the order-sheet or take any steps. The position then is this that the proceedings in connexion with the setting aside of the sale had terminated. Immediately after the passing of the order in the said proceedings a further order was passed by the Munsif calling upon the decree-holder to take steps and it must be remembered that this last mentioned order could not possibly have been passed very much earlier than 4-30 p.m. and shortly thereafter finding that no body was present or prepared to take steps on behalf of the petitioner the learned Munsif proceeded to dismiss the execution proceedings for default. To say the least the haste with which the proceedings were conducted by the Munsif on this particular occasion appears to my mind to have been somewhat-indecent.

3. Be that as it may, the order dismissing: the application for default does not, in my judgment, appear to have been at all a reasonable one. It could not be expected that the decree-holder or his men should be present in Court in order to find out the precise moment at which the proceedings for setting the sale aside would terminate and to hear had further order was going to be passed by the Court. I am of opinion that in dismissing the execution proceedings for default in the way that he did the Munsif acted with such material irregularity as calls for our interference under Section 115 of the Code of Civil Procedure.

4. I am accordingly of opinion that that order should be set aside and that the execution proceedings should be restored and a reasonable opportunity should be given to the decree-holder to take such steps as he may be advised in the matter. The Rule is made absolute. The petitioner is entitled’ to his costs two gold mohurs.

Graham, J.

5. I agree.

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