ANINDYA CHANDRA VERMA Vs. SURAJ PRASAD OJHA

JUDGEMENT

(1.) AN application of the Judgment-debtor-petitioners for setting the sale aside was dismissed for default on the 4th June, 1960. Thereafter, the petitioners filed an application under Section 151, Civil Procedure Code, to restore the said miscellaneous case. The learned Munsif on merits has accepted the case made out by the petitioners for restoration of miscellaneous case No. 103 of 1959, that is to say, the case started for setting aside the sale; but he has refused to restore the said case on the ground that in exercise of the inherent powers he cannot restore it as the order dated the 4th June, 1960, dismissing the miscellaneous case for default was an appealable one. In my opinion, the learned Munsif has refused to exercise jurisdiction by taking an erroneous view of the law. Having heard the facts of the miscellaneous case dismissed for default from the advocates for the parties, I am of the view (of course, this view is being expressed for this case only) that the said case was under Section 47, Civil Procedure Code. That being so, an order dismissing the application under Section 47 I for default is not a decree within the meaning of Section 2 (2), Civil Procedure Code, as it is provided in that sub-section,

(2.) IN the result, I allow the application, set aside the order of the Court below and direct that the Miscellaneous case No. 103 of 1959 shall be restored to its original file and the learned Munsif will proceed to dispose it of according to law. I would make no order as to costs.