MIRA CHATTERJEE Vs. JOYDEB CHATTERJEE

JUDGEMENT

(1.) THIS First Miscellaneous appeal is at the instance of the unsuccessful applicants under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure filed in a regular Title Appeal and is directed against order No. 43 dated February 15, 2007 passed by the learned Civil Judge (Senior division), Arambagh, in Title Appeal No. 39 of 1999 thereby rejecting the said application under Order XXXIX, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure.

(2.) IN our view, the present First Miscellaneous Appeal is not maintainable. According to Order XLIII, Rule 1 (r) of the Code of civil Procedure, a First Miscellaneous Appeal lies against an order under Order xxxix, Rules 1, 2, 2a, 4 and 10 of the Code of Civil Procedure. The opening sentence of order XXXIX, Rule 1 of the Code of Civil procedure starts with the phrase "where in any suit it is proved by affidavit or otherwise. . . . . . ". Therefore, Order XXXIX, Rules 1 and 2 of the Code is applicable only to the suits. However, by virtue of the provisions contained in Section 141 of the Code, the procedure provided in the Code of Civil Procedure in regard to the suits should be followed as far it can be made applicable in all proceedings of any Court of civil jurisdiction.

(3.) IT may not be out of place to mention here that the corresponding Section 646 of the Code of 1882 read as follows :-