MRINALINI DASSI Vs. KUMAR SURJENDU NARAYAN DEB

JUDGEMENT

(1.) This appeal involves certain questions of some nicety which do not seem to have been canvassed in any previous case.

(2.) The facts are simple and for the most part undisputed. It appears that on May 17, 1946, the Appellant, Mrinalini Dassi, brought a., suit against the two Respondents under a promissory note for the recovery of a sum of Rs. 10,679-1-2. The suit was one under Order XXXVII of the Code of Civil Procedure. On that suit being brought, writs of summons were issued on May 31, 1946, but they were returned by the Sheriff on August 2, following with an endorsement to the effect that no one on behalf of the Plaintiff had attended at his office to assist him in effecting service. Thereafter, the matter seems to have gone into cold storage and no steps were taken till February, 1950. In that month the Court issued a notice to the Appellant to inform her that the suit would be set down on the Special List on February 8, 1950, which meant that it would appear for dismissal on account of default, unless good cause to the contrary was shown. The Appellant thereupon showed some cause by a petition in which it was merely stated that the solicitor in charge of the case had died in September, 1946, and thereafter no steps had been taken. The matter came up on February 8, 1950, before Sarkar, J., who directed the suit to be placed in the Special List for disposal immediately on the expiry of one month. The learned Judge did not state the reason or the purpose for which he granted the adjournment, but presumably he did so in order to give the Appellant an opportunity to serve the Respondents, if that course was still open to her. Thereafter, on February 17, 1950, the Appellant made an application before the Master, praying for the issue of fresh summonses and by an order passed on the same date, the Master directed fresh summonses to issue. In the application made before the Master also, no cause for the delay was mentioned except that the solicitor in charge of the case had died in September. 1946. In pursuance of the order made by the Master, summonses were served on March 20, 1950, on an officer of the Respondents. They, thereupon, filed an warrant of appearance and made an application before Bachawat, J., praying that the order of the Master, directing the issue of fresh summonses, might be set aside and the suit might be dismissed under Order IX, Rule 5 of the Code of Civil Procedure. Bachawat, J., gave effect to both of those contentions. He set aside the order of the Master and thereafter dismissed the suit. It is against that judgment and order that the present appeal is directed.

(3.) Bachawat, J., overruled the contention of the Appellant that he had no jurisdiction to set aside the order of the Master. The learned Judge held that he was entitled to do so and proceeding to deal with the order on the merits, he held that the Master's order was both without jurisdiction and bad on the merits. He appears to have held that he was entitled to disregard the service effected in pursuance of the order of the Master and treat the case as one where summonses had been returned unserved and no steps had been taken by the Appellant to have fresh summonses issued within the period of three months. Accordingly, he dealt with the case as one coming under Order IX, Rule 5 of the Code and dismissed the suit in accordance with the terms of that rule.