ALI MONDAL Vs. KAZI GOLAM BARI

JUDGEMENT

(1.) THIS Rule was issued at the instance of one Syed Ali Mondal under the following circumstances.

(2.) SYED Ali Mondal was the purchaser of some properties sold at a Court sale held in Rent Execution Case No. 649 nf 1952 in the Court of the 2nd Munsif, Baraset. Thereafter the judgment -debtors filed an application on 17 -3 -1953 for setting aside the sale under Section 174(3), Bengal Tenancy Act. An objection was filed to that petition by auction -purchaser Syed Ali Mondal on 2 -5 -1953.Notices were thereafter issued to the persons who were made opposite parties in the sale set aside case. But it appears that the notice was duly served en opposite party No. 5 who was subsequently made a party in that case. The result was that on 3 -10 -1953, the Court recorded an order, in the order -sheet directing the petitioner to take steps for fresh service of a registered post card upon the above opposite parties by 14 -11 -1953. On that date the petitioners filed hajira but did not take any steps for service of fresh notice by registered post as they had been directed to do by the order of the previous elate and so the case was dismissed for non -prosecution, On 19 -11 -1953 the petitioners filed an application which purports to be one under Section 151, Civil P. C. for restoration of the case to file on the ground that in the daily cause list the case was noted only for taking steps. It appears that this application was shown to the learned Pleader who had till then been acting on behalf of Syed Ali Mondrd and he noted in the margin: 'Seen. Strongly objected to.' On the same day viz. on 19 -11 -1953, the Court duly considered this application and recorded an order setting aside the order of dismissal for non -prosecution and restoring the case to file. Among other observations it was staled by the learned Munsif that the order passed in the order sheet of the case on 3 -10 -1953 for issuing fresh notice by registered post was not notified to the party in the daily cause list and so the prayer of the petitioners for restoration of the case could not be refused because it was the duty of the Court to correct its own mistake.

(3.) MR . Mitter appearing on behalf of the petitioner made several submissions before me. He contended in the first place that there was really no mistake on the part of the Court because the case was mentioned in the daily cause list and it was the duty of the judgment -debtors' pleader to refer to the order -sheet and to take such steps as the petitioners had been directed to take by the order dated 3 -10 -1953. In my judgment, this contention of Mr. Mitter cannot be accepted. The daily cause lists are maintained according to the Civil Rules and Orders and parties generally take their steps in judicial proceedings according to the entries made therein. The fact that in the daily cause list, the judgment -debtors were directed only to lake steps must have misguided them. The order -sheet of the trial Court shows that as a matter of fact the petitioners did file their hajira on 14 -11 -1953 on which date the Miscellaneous Case was dismissed for non -prosecution. As the note in the daily cause list was neither specific nor clear, the petitioner could not take suitable steps in the case. The learned Munsif also thought that the above entry in the daily cause list did not enable the petitioners before him to take the required steps. He further thought that the vague and insufficient entry was due to a mistake on the part of the Court. In these circumstances, I am of opinion that the trial Court was justified in not allowing the judgment -debtors to be prejudiced in any way by an omission on the part of the Court.