JAMUNA CHAKRABORTY Vs. SITAL CHAKRABORTY

JUDGEMENT

(1.) This first miscellaneous appeal is at the instance of an unsuccessful applicant under order 39 Rules 1 and 2 of the Code of Civil Procedure filed in a regular title appeal and is directed against Order No. 66 dated January 05, 2007 passed by the learned Civil Judge (Senior Division), Second Court at Hooghly in Title Appeal No. 245 of 1993 thereby rejecting the said application under Order 39 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 43 Rule l(r) of the Code of Civil Procedure, a first miscellaneous appeal lies against an order under Order 39 Rules 1, 2, 2A, 4 and 10 of the Code of Civil Procedure. The opening sentence of Order 39 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 39 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: "The procedure herein prescribed shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil Jurisdiction other than suits and appeals".