NETAI BANDOPADHYAY (BANERJEE) Vs. GITARANI KUNDU AND ANOTHER

JUDGEMENT

(1.) Re: Application for setting the abatement. After hearing the learned advocates appearing for the parties and after going through the application find that sufficient cause has been made out for not bringing on the heirs and legal representatives of opposite party No. 2 as mentioned in paragraph 4 herein within the period of limitation. Let the application for setting aside abatement be allowed. Let the heirs as mentioned in paragraph 4 be brought on record. Services upon the substituted heirs are dispensed with.

(2.) Re : Application under Sec. 115. This revisional application is at the instance of a pre-emptor in a proceeding under Sec. 8 of the West Bengal Land Reforms Act and is directed against order dated Aug. 27, 1993 passed by the learned Assistant District Judge, 6th Court, Alipur in Misc. Appeal No. 471 of 1992 thereby affirming order No. 53 dated Aug. 22,1992 passed by the Munsif, 5th Court, Alipur in Misc. Case No. 11 of 1992. The present petitioner filed an application under Sec. 8 of the West Bengal Land Reforms Act in the 5th Court of the Munsif, Alipur thereby giving rise to Misc. Case No. 35 of 1986. Ultimately the said Misc. Case was dismissed for default. The petitioner filed an application under Order 9, Rule 9 of the C.P.C. for restoration of the said Misc. Case under Sec. 8 of the West Bengal Land Reforms Act. The said application under Order 9, Rule 9 of C.P.C. gave rise to Misc. Case No. 11 of 1992. After contested hearing the learned Munsif was pleased to dismiss the said Misc. Case No. 11 of 1992. Being dissatisfied with the aforesaid order rejecting the application under Order 9, Rule 9 of C.P.C., the petitioner preferred an appeal before the learned District Judge thereby giving rise to Misc. Appeal No. 471 of 1992. The said Misc. Appeal was transferred to the Court of the learned Asstt. District Judge, 6th Court, Alipur and the learned Asstt. District Judge by the order impugned was pleased to dismiss the said Misc. Appeal thereby affirming the order passed by the learned Munsif. Being dissatisfied with the said order passed by the learned Asstt. District Judge the pre-emptor has come up in this revisional application.

(3.) Mr. Chakraborty, the learned Advocate appearing on behalf of the opposite party has raised a preliminary objection as to the maintainability of the instant revisional application as also the maintainability of the Misc. Appeal No. 471 of 1992 and disposal of the same by the learned Asstt. District Judge. According to Mr. Chakraborty, if an application for pre-emption is dismissed for default, by virtue of the provisions contained in Sec. 141 of C.P.C. an application under Order 9, Rule 9 of C.P.C. is applicable. Mr. Chakraborty, however, contends that if such an application under Order 9, Rule 9 is dismissed on merit in that event an appeal under Order 43, Rule 1 of C.P.C. Is not maintainable, Mr. Chakraborty, further contends that by virtue of Sec. 141 of C.P.C., what is made applicable to Misc. proceeding is the procedure provided in the Code of Civil Procedure with regard to suit but by invoking Sec. 141 of C.P.C. the substantive right of appeal created under Code of Civil Procedure cannot be made applicable. In support of such contention Mr. Chakraborty relied upon a decision of this Court reported in AIR 1948 Cal 77 (Birendra Nath Biswas Vs. Monorama Debi) .