JAGANNATH ROY Vs. MOHENDRA NATH MUKHERJEE

JUDGEMENT

(1.) These two appeals are against the decision of the learned subordinate Judge, 2nd Court, Hooghly, on an application under Order IX, Rule 13 of the Code of Civil Procedure and under Section 151 of the said Code. The Respondents Mohendra Nath Mukherjee and others had filed an application under Section 38 of the Bengal Money-Lenders Act, 1940, on June 21, 1947, immediately after receipt of a letter of demand from the solicitors Messrs. B.N. Basu and Co. with regard to the loans, mentioned in the letter as taken from. Jagannath Roy and Boloram Roy. The orders as recorded in the order sheet of the learned subordinate Judge show that notice of this application was served on all the three opposite parties, but as they did not appear, the case was taken up for hearing ex parte. The case was finally disposed of on October 10, 1947, and an order was passed declaring the different amounts due on the different hand-notes mentioned in the petition.

(2.) The case sought to be made by Kumar Promotha Nath Roy and his sons Jagannath and Balaram in the application under Order IX, Rule 13 of the Code of Civil Procedure is that no notice was served on any of them and that they were prevented by sufficient cause from appearing before the Court. The applicants prayed that the ex parte decree might be set aside under Order IX, Rule 13 of the Code of Civil Procedure and also mentioned Section 151 of the Code of Civil Procedure as the section under which the same relief might be given to them.

(3.) The learned subordinate Judge on a consideration of the evidence came to the conclusion that the notice of the application had been properly served and that even apart from that they had full knowledge of the application under Section 38 of the Bengal Money-Lenders Act and deliberately refrained from appearing in Court. He held that no case had been made out for setting aside the decree under Order IX, Rule 13 of the Code of Civil Procedure and accordingly dismissed the application. He did not in his order mention anything in so many words as regards Section 151 of the Code of Civil Procedure.