FULZORIA DASI Vs. TARUBALA BOSE

JUDGEMENT

(1.) The short point that arises for determination in these two cases is as to whether an application under Section 151 of the Code of Civil Procedure would lie to set aside an order of dismissal of an application for review filed by the tenant in a proceeding under the Calcutta Thika Tenancy Act. There was an order for ejectment passed on terms and thereafter the present petitioner filed an application for review. That application was set down for hearing on the 1st August, 1964 and on that date the parties had filed Hazira and though the opposite party was found to be present, the petitioner was found to be absent and the learned Judge, therefore, dismissed that Misc. case for default. Thereafter the petitioner filed an application under Section 151 of the Code of Civil Procedure for setting aside that order of dismissal. The learned Controller held that there was no scope for an application under Section 151 of the Code of Civil Procedure and accordingly rejected that application. The present Rules were issued in respect of that order. On behalf of the opposite party, Mr. M. M, Mukherjee relies on a decision of this Court as (1964) 68 Cal WN 1064. Sibani Rani Dutta v. Balai Chandra Dutta. Clearly, if this decision holds the ground, the learned Munsif's opinion that there was no scope for an application under Section 151 of the Code of Civil Procedure, would stand.

(2.) It would however appear that there is a contrary decision of this Court by another Division Bench in Civil Rule No. 1901 of 1957 (Cal). That matter was disposed of on the 23rd July 1958 and there an application under Order 21, Rule 90 was dismissed for default and an application under Section 151 of the Code of Civil Procedure filed by the judgment-debtor was rejected by the learned Subordinate Judge on the ground that an application under Section 151 of the Code of Civil Procedure did not lie. But this Court held that though an appeal did lie against such an order still there was scope for application under Section 151 of the Code of Civil Procedure.

(3.) In this case Mr. Mukherjee has further pointed out that every order passed by the Thika Tenancy Controller is appealable and accordingly this impugned order in this case was appealable and as such Section 151 of the Code of Civil Procedure would have no application. He relies on the decision (1964) 68 Cal WN 1064.