BIMALA DEVI Vs. AGHORE CHANDRA MALLICK

JUDGEMENT

(1.) In this reference the facts are that on the 5th January, 1965, Title Suit No. 83 of 1959 in the Subordinate Judge's Court at Alipore for the recovery of money due on a mortgage bond was decreed. The decree-holder thereafter started execution proceeding, being Title Execution Case No. 2 of 1965. On August 4, 1965, the petitioner's first bid was not accepted. Two days later the petitioner's bid was accepted and the sale took place. The opposite party No. 1 on the 4th September, 1965, filed an application under Order 21 rule 90 of the Code of Civil Procedure in the First Court of the Subordinate Judge at Alipore which was registered as Miscellaneous Case No. 51 of 1965. was dismissed for default on the 7th May, 1966,and the sale was confirmed on the 10th May, 1966. The opposite Party No. 1 filed an application on May 17, 1996, under section 151 of the Code of Civil Procedure for reserving the order to dismissal for default made on the 7th May, 1996. Possession was delivered to the petitioner on the 31st May, 1966; but the application under section 151 was allowed, the order of dismissal was set aside and the Miscellaneous Case No. 51 of 1965 was restored to file by an order of the learned Subordinate Judge, dated July 15, 1996. This Rule was obtained on the 17th August, 1966, under section 115 of the Code and it is directed against the order of July 15, 1966.

(2.) The point that arises for our consideration, is the maintainability of the application under section 151 on the facts and in the circumstances stated above. As there were differences of opinion on this question between Division Benches of this Court, the entire matter was referred by me and my learned Brother, Mr. Justice S.K. Datta to a Full Bench under Chapter VII of the Appellate Side Rules.

(3.) Now, Order 21 Rule 90 of the Code provides, for an application to set aside a sale in execution of a decree on the ground of material irregularity or fraud in publishing or conducting the sale provided that the applicant has sustained substantial injury by reason thereof.