SAMBHU NATH SADHUKHAN Vs. MEGHESH KUMAR SADHUKHAN

JUDGEMENT

(1.) THE principal question that falls for determination in this rule is whether an application filed under section 476 of the Coda of Criminal procedure 1898 (hereinafter referred to as the Code) in a Civil Court is to be governed by the Code of Civil Procedure or the Code of Criminal Procedure. Another question ancillary to the above, which also requires an answer is whether a revisional application against any order passed in such a proceeding, is to be made under section 115 of the Code of Civil Procedure or section 439 of the Code. The questions arise in this way.

(2.) THE parties hereto, who are three brothers, had been litigating in the 4th court of the Additional District Judge, alipore over an application for probate of the last will and testament of their mother. In that proceeding which was registered as 0. S. No. 10 of 1971 Sri Meghesh Kumar sadhukhan, one of the brothers and the opposite party No. 1 herein, filed an application on January 30, 1974 stating that his other two brothers produced a forged document during the hearing of the probate application and Sri Gurudas Banerjee, the opposite party No. 3 herein, supported them by giving false evidence and praying that a complaint may be filed against them under sections 193, 194, 195 and 471 read with section 34 of the Indian Penal Code. On the date fixed for hearing of the said application meghesh Sadhukhan and his lawyer were absent and the application was dismissed for default. Thereafter an application under order 9 rule 9 and section 151 of the Code Civil Procedure was filed and by his order No. 159 dated 5. 5. 1979 the learned Judge allowed the application, set aside the order of dismissal and restored misc. Case No. "2 of 1974, which was registered on the application under section 476 to file. Aggrieved thereby the petitioner, who was one of the opposite parties in that application, moved this Court in its criminal revisional jurisdiction by filing an application which was described as one under article 227 of the Constitution of India and sections 397/401 read with section 482 of the Code of Criminal Procedure, 1973 and obtained the present Rule. On behalf of the petitioner it was contended that an application under section 476 of the Code was to be governed by the Code of Criminal Procedure and accordingly the learned judge erred in law in invoking the Code of civil Procedure and, for the matter of that, the provisions of order 9 rule 9 of the said code for setting aside the order of dismissal of that application. The opposite party no. 1 on the other hand contended that since the application under section 476 of the Code was filed before a Civil Court it was to be dealt with in accordance with the Code of Civil Procedure and the learned Judge was fully justified in setting aside the order of dismissal by taking recourse to order 9 rule 9 thereof. It was further contended on behalf of the opposite party that the instant application filed in the criminal revisional jurisdiction of this Court was not maintainable as the order was passed by a civil Court and not by an inferior Criminal court, and the provisions of sections 435 and 439 of the Code or the provisions of sections 397/401 of the Code of Criminal procedure, 1973 were not applicable.

(3.) THE questions raised in this Rule have had been engaging the attention of different High Courts and diametrically opposite views have been taken by their full Benches. So far as the ancillary question, formulated above, is concerned, a Full bench of our High Court expressly laid down, in the case of Haraprosad Das -vs-Emperor reported in 17 Calcutta Weekly notes page 347 that in the case of an order passed under section 476 of the Code by a civil or Revenue Court, section 439 of the code had, no application as those Courts were not inferior Criminal Courts and such an order could be revised by the High court only under section 115 of the Cods of Civil Procedure. Since we are bound by the above decision of the Full Bench we must hold that the present application, filed by the petitioner invoking the criminal revisional powers of this Court is not maintainable, instituting the application as one under Article 227 of the Constitution of india is of no assistance to the petitioner as the law is now settled that the above constitutional provision cannot be availed of to circumvent specific provision of statute, and section 115 of the Code of Civil Procedure provides for effective and adequate remedy to meet the needs of the instant case.