GOURMOHAN BANDOPADHYAYA Vs. LAXMI NARAYAN KARMAKAR

JUDGEMENT

(1.) This Rule arises on an application under Sec. 115 of the Code of Civil Procedure and is directed against the judgment dated January 31, 1974, passed by Sri M.N. Ray, Additional District Judge, Second Court at Hooghly, in Mise. Appeal No. 147 of 1973 reversing the judgment dated August 6, 1973, passed by Sri A.K. Nandi, Subordinate Judge, Second Court, Hooghly, in Misc. Case No. 139 of 1972 arising out of T.S. No. 55 of 1970.

(2.) The facts of the case may briefly be stated as follows:

(3.) Mr. Saktinath Mukherjee, learned Advocate appearing on behalf of the Petitioner, submits that the very grounds which were taken in the application under Sec. 47 were again taken in the application under Order IX, Rule 13. The additional ground which was taken in the second application is that due to the wrong advice of Sri S.C. Ghosh, learned lawyer, the opposite party filed an application under Sec. 47 of the Code. It was only after his death when a senior lawyer Sri B.B. Banerjee was appointed, he opined that Sec. 47 application was wrongly filed and an application under Order IX, Rule 13 ought to have been filed. After such legal advice was obtained the application under Order IX, Rule 13 was filed on October 5, 1972. Mr. Mukherjee in this connection draws our attention to some important dates. It is the admitted position that the information about the ex parte decree was obtained on the basis of information slip on December 13, 1971. There is, therefore, absolutely no reason why the application under Sec. 47 on the ground that an ex parte decree was obtained fraudulently, could not be filed within 30 days from the date of knowledge. Again, Mr. Mukherjee submits that after the death of Sri S.C. Ghosh, Sri B.B. Banerjee appeared in this case on August 18, 1972. Additional objections were filed by Sri Banerjee on September 14, 1972. But even then Sri Banerjee did not advise the opposite party to file an application under Order IX, Rule 13. Sec. 47 objection was disposed of on October 4, 1972. It is only after the disposal of the said objection that an application under Order IX, Rule 13 of the Code read with Sec. 5 of the Limitation Act was filed on October 5, 1972 The learned Subordinate Judge did not accept the contention of the opposite party that Sri S.C. Ghosh wrongly advised to file an application under Sec. 47. It was also noted by the learned Subordinate Judge that the brief was placed in the hands of an eminent lawyer of Mr. Banerjee's standing on August 18, 1972. Mr. Banerjee ought to have opined earlier that the present Mise. Case should be filed. It is seen that the opposite party proceeded with the Mice. Case through Mr. Banerjee until October 4, 1972, when the same was dismissed and it was only on the next day that an application under Order IX, Rule 13 was filed. The learned Subordinate Judge found that the period intervening between December 13, 1971 and February 4, 1972, remains unexplained both in the petition and in evidence and the intervening period is in excess of permissible one month. There has been no attempt to explain the delay either in the petition or in evidence. The learned Additional District Judge reversed the finding making the following observations: