ADHIKARI DAYANIDHI DAS Vs. KRUPANIDHI NANDA

JUDGEMENT

(1.) THIS appeal is against an order dismissing the Defendant's application under Order 9, Rule 13, Code of Civil Procedure Code.

(2.) THE Plaintiff Respondent filed Title Suit No. 72 of 1967 for specific performance of a contract of sale in respect of a homestead land situated at Kundheibenta Sahi in Puri town. The suit was formally opened on 22 -12 -1971 and was adjourned to 3 -1 -1972 for further hearing. On that date the Court being engaged in a sessions trial the suit was posted to 8 -1 -1972 for further hearing. On 8 -1 -1972 the Defendant filed an application supported by medical certificate for one month's time on the ground of his illness. As the Presiding Officer was on casual leave, the Munsif in charge adjourned the suit to 10 -1 -1972 for further hearing without passing any order on the Defendant's application. The Defendant's application dated 8 -1 -1972 was put up on 10 -1 -1972. The learned Subordinate Judge rejected the same and proceeded to dispose of the suit under Order 17, Rule 3, Code of Civil Procedure Code.

(3.) THE learned Subordinate Judge held that the application under Order 9, Rule 13, Code of Civil Procedure was not maintainable inasmuch as the disposal of the suit was under Order 17, Rule 3, Code of Civil Procedure Code. He also held that the Defendant had failed to prove that he was prevented by sufficient cause from appearing in Court on 10 -1 -1972. Accordingly, he dismissed the petition under Order 9, Rule 13, Code of Civil Procedure Code. Aggrieved by this decision, the Defendant has preferred this appeal.