TARA PADO GHOSE Vs. KAMINI DASSI

JUDGEMENT

(1.) This is an appeal against an appellate order. The facts are that a decree for foreclosure was passed in favour of the respondent on the 7 June 1898. It was made absolute on the 22 December, 1898. Possession was taken on the 30th January 1899. On the 8 February 1899 the defendant applied for a rehearing under Section 108, Civil Procedure Code. The Munsif refused her application. She appealed to the Subordinate Judge, who remanded the case for re-enquiry under Section 562, Civil Procedure Code. The Munsif then adhered to his former decision. The Subordinate Judge on a further appeal to him being made passed an order, allowing the defendant to pay a sum of Rs. 380, and on her doing so, directed her restoration to possession of the land. The plaintiff prefers this second appeal. A preliminary objection is raised that no second appeal lies under the provisions of Section 588. This objection would seem to be valid. The learned Advocate-General contends for the appellant that a second appeal lies because the order of the Munsif was an order passed in execution. This contention, however, cannot prevail in face of the decision in Akihnnissa Bibee V/s. Roop Lal Dass (1897) I. L. R. 25 Calc. 133. We therefore dismiss the appeal, but without costs.

(2.) The learned Advocate-General on our intimating our intention of taking this course presented an application under Section 622, Civil Procedure Code, and prayed that we should deal with the matter under that section. We think that in the interests of justice we should do so.

(3.) The Subordinate Judge held that the respondent could not impugn the order making the decree for foreclosure absolute on the ground that no notice had been served upon her before it was passed, but was of opinion that the plaintiff had given the defendant some assurance that he would deal leniently with her, and therefore the defendant should be allowed another opportunity of paying off the debt due by her notwithstanding that the decree for foreclosure had been made abslute.