TARAPADA SARKAR Vs. NEPAL GAZI

JUDGEMENT

(1.) The petitioner Tarapada Sarkar instituted Money Suit No. 95 of 1955 against defendant No. 1 Nepal Gazi and the Chakraborties (Defendants Nos. 2 and S), who are the opposite parties in this case, in the fourth Court of Munsif at Alipore for recovery of certain sum of money on account of his share of produce of some land In respect of the year 1361 U.S. This suit was contested by the defendants by filing a joint written statement. The date of peremptory hearing of the suit was fixed on 1-9-1959 and as the defendants failed to attend the Court or take any steps on that date, the suit was eventually decreed ex parte. Thereafter the defendants applied for setting aside the ex parte decree by filing an application under the provisions of Order 9, Rule 13 of the Code of Civil Procedure and the case was numbered as Misc. J. Case No. 192 of 1989. The above case was heard analogously with Misc. J. Case No, 193 of 1959, which arose out of a similar application filed under Order 9, Rule 13 of the Civil Procedure Code for setting aside the ex parte decree passed in Money Suit No. 135 of 1955 of the same Court Besides the Chakraborties. Nuro Molla and Tarijaddi Molla, respectively, figured as defendants Nos. 1 and 2 in that suit, which was also instituted by the present plaintiff and which was also decreed ex parte on 1-9-1919 under similar circumstances. After hearing the parties in both the oases the Court passed the following order on 21-5-1960:

(2.) No money was either paid to the plaintiff or deposited in the Court as directed, by 7-6-1960. On 7-6-1960 a petition for an extension of time by three days more for making the payment was filed in the Misc. J. Case No. 192 of 1959. However, that petition was not moved before the Court and on 8-6-1960 another petition showing cause and for condoning the delay to deposit the cost was filed by the defendants in that case. They also deposited the cost as ordered, in the Court on 8-6-1960. The plaintiff opposed the prayer of the defendants in this respect and after hearing both the sides the Court condoned the delay and accepted the cost so deposited, by his order No. 48, dated 30-7-1960. The Court then passed the following further order:

(3.) Being aggrieved by the above orders No. 48, dated 30-7-1960 and No. 49, dated 30-7-1960 the petitioner has filed this application under Section 115 of the Code of Civil Procedure.