MANOHAR PRASAD MISHRA Vs. CHANDULAL ALIAS JAGDISH PRASAD

JUDGEMENT

(1.) THIS application arises out of First Appeal No. 33 of 1946 which has bad rather an unfortunate and chequered career in this Court. It appears that in that appeal there were several respondents and two of them, viz. , respondent No. 7 and respondent No. 8, were minors. During the pendency of the appeal one oe the minors became major and an application was made by the appellant informing the court about this. On 10th December, 1951 that application was put up before this bench. The Bench required the office to report if an affidavit was necessary in view of a ruling of Mangalmurti and Mudholkar, JJ. in First Appeal no. 2 of 1949. It appears that the application was not accompanied by an affidavit which, according to the rules of this High Court has to be filed along with every application stating a fact. The case was put up before the same Bench on 10th December, 1951, and the bench ordered as follows :--

(2.) THE affidavit not having been filed and the process-fee not having been paid, the case was again laid before the Court on 21st January, 1952. On that date the bench consisting of Sinha, C. J. (as he then was) and Mudholkar J. passed the following peremptory order : "shri D. T. Mangalmurti for the appellant heard. TWO weeks' time is allowed to carry out the Bench's order of the 13th december, 1951, failing which the appeal shall stand dismissed without further reference to a Bench. Sd/- B. P. Sinha C. J. Sd/- J, R. Mudholkar J. " the office received the affidavit on 25th January, 1952 but the process-fee was not paid. It being in doubt as to whether the appeal was ordered to be dismissed or the application, which was being kept alive out of abundant caution, put the matter before the Judges in chambers. The learned Chief Justice, it appears, was at first of the opinion that neither could be dismissed and he wrote an order to that effect which he scored out in view of the opinion of Mudholkar, J. which reads as follows :--"our order must take effect. We have no power to alter it. Sd/- J. R. Mudholkar J. " the Chief Justice added : "yes, according to our order dated 21-1- 1952 the appeal stands dismissed. Sd/- B. P. Sinha c. J. " the office on that noted as follows :-"as ordered by the Court the appeal stands dismissed. Proceed further. Sd/- C. M. Kondiah 8-2-1952. " we carefully looked into the case to find out what the proceedings further were, but it appears that nothing was done and no decree of dismissal of the appeal was ever drawn up.

(3.) AFTER this the appellant made an application on 30th December, 1953 which purported to he against the order made in chambers on 6th February, 1952. He stated in that application that the affidavit was being made and the process-fee was being paid, out of abundant caution and not under the orders of the Bench. The affidavit having been filed and no notice to the major respondent being necessary he did not concern any further with the matter and the order of dismissal of the appeal took place behind his back. He averred that when he inspected the record for the first time on 10th December, 1953 the dismissal of the appeal was discovered and hence the application was being made for its restoration: (Miscellaneous Civil Case No. 56 of 1954, decided on 5-7-1955 ). This case dragged on for over a year till it came before a Bench of mudholkar and Naik, JJ. who on 5th July, 1955 dismissed the application for restoration of the appeal. In dealing with the matter their Lordships observed that what the applicant before them wanted to be set aside was an order made in chambers on 6th February, 1952, whereas what he ought to have asked to be set aside was the order dated 21st January, 1952. Inasmuch as the earlier order could not be described as ex parte because Shri D. T. Mangalmurti, counsel for the appellant (applicant) was present when the order was dictated in court, the application before them could not be treated as an application for setting aside that order. They therefore without going into the merits of the application dismissed it, leaving the appellant free, if they cared, to make a further application in the case.