KSHETRA MOHAN BARIK Vs. MAN GOBINDA PAL

JUDGEMENT

(1.) This is a Rule calling on the opposite party to show cause why the order of the Munsif, second Court, of Contai, dated the 17 August, 1909, should not be set aside and an order passed by this Court directing him to re-admit the suit of the petitioner as mentioned in the petition.

(2.) It appears that a suit was brought by the petitioner in the second Court of the Munsif of Contai, and a decree was obtained. The opposite party afterwards brought a suit in the third Court of the Munsif of the same place to have the decree obtained by the petitioner as above mentioned set aside or the ground of fraud and on several other grounds and the result of that suit was that a decree was granted in favour of the opposite party setting aside the decree of the second Court obtained by the petitioner on the ground that it had been obtained in fraud of the opposite party and without his knowledge. The order went on to state: "The result of such setting aside of the decree will be that the suit aforesaid," namely, the suit of the petitioner, shall be restored to file and shall be heard in the presence of the defendant in that case." This decree was passed on the 10 June 1909. An application was then made by the present petitioner on the 31 July 1909 to the Munsif, Second Court, of Contai, praying that, in accordance with the terms of the decree passed by the third Court, the suit which he had brought in the second Court might be restored to the file and re-heard. The Munsif of the second Court held that he could not grant the prayer made in the application because he was of opinion that the decree of the third Court, a Court of equal jurisdiction to his own, could not have the effect of restoring to his file for trial a suit which had already been disposed of He accordingly, on the 17 August 1909, refused the application. The present application was made to this Court on the 23 November 1909, and a Rule was obtained.

(3.) The question which we have to decide is whether the view taken by the Munsif, second Court, of Contai, is right, that the decree of the third Court did not empower him to restore to his file a suit which had been tried and disposed of in his Court. It has been contended on behalf of the petitioner that this question cannot be raised on behalf of the opposite party because the opposite party got the decree in the 3 Court of the Munsif. But that does not seem to be the real question for determination in the present rule. The question is not whether the opposite party can oppose the present application but whether the Munsif of the second Court was, in law, justified in refusing to restore the suit to his file on an order of a Court of equal jurisdiction. We have given the matter a careful consideration and in our opinion, the view which the Munsif, second Court, of Contai, has taken is correct, the effect of the decree of the third Court was to declare that the decree of the second Court did not bind the opposite party for certain reasons. But the Munsif of the third Court had certainly no power under the law to direct that the suit in the second Court should be restored for rehearing. It was the duty of the petitioner, after the decree had been passed, to bring a fresh suit in the second Court in order to seek the reliefs which he had claimed. It is suggested that the petitioner may now be barred by limitation and it is contended that, as the decree of the third Court was obtained at the instance of the opposite party, this result would be inequitable. This is not, however, a question which we can deal with in this case. We have, in this case, only to determine whether the order of the Munsif, second Court, refusing to restore the suit to the file was correct in law or not. We see no reason for holding that it was incorrect. The result, therefore, is that the Rule is discharged with costs, one gold mohur.