SATISH CHANDRA BHATTACHARJEE Vs. SRI JOGUNNESSA BIBI

JUDGEMENT

(1.) The facts which have given rise to the present application are these.

(2.) One Umedali applied under Order XXI, Rule 90, Civil Procedure Code, in the Court of the 6 Munsif at Comilla for setting aside a sale, and during the pendenoy of the said proceedings died on the 18 July 1920. On the 24 July 1920 the death was reported to the Court, and the learned Munsif made a note of it in the order-sheet. Thereafter, on five different dates, the proceedings were adjourned on the ground that the heirs had not been made parties and six months had not yet elapsed from the date of death. On the 5 February 1921, one of the dates to which the case was adjourned, an application for substitution was made on behalf of the heirs and legal representatives of Umedali and the same was allowed. It does not appear whether the opposite party were present on that date or not, but on none of the dates to which the case was subsequently adjourned, was any objection taken to the order for substitution that had been made, and the proceedings went on with the result that the learned Munsif set aside the sale by an order passed on the 18 February 1922. The opposite party preferred an appeal to the District Judge of Tipperah and the learned District Judge set aside the Munsif's order and dismisssed the application for setting aside the sale, on the ground that the application had, as a matter of fact, abated by reason of the death of Umedali and the application for substitution was incompetent and the substitution had been wrongly allowed. The petitioners have thereupon moved this Court and obtained the present rule to show cause why the order of the District Judge should not be set aside and that of the Munsif restored or why such other or further orders should not be passed as to this Court may seem fit.

(3.) We have heard the parties and considered the facts and circumstances of the case in so far as they bear upon the present Rule. The learned District Judge was undoubtedly Right in his view of the law that the proceedings had automatically abated on the 18 January 1921 under Order XXII, Rule 3, Civil Procedure Code, and no application, for substitution could be entertained after that date, the petitioners by presenting a proper application under Order XXII, Rule 9(2), Civil Procedure Code, and only by showing sufficient cause could obtain an order setting aside the abatement. We think, however, that by reason of the application for substitution being readily allowed by the learned Munsif and no objection having been taken by the opposite party at any stage of the protracted proceedings that followed in his Court, the petitioner were deprived of an opportunity to make an application under Order XXII, Rule 9 (2), Civil Procedure Code, and they were misled by the course of the proceedings that were adopted. The order passed by the learned District Judge reversing the decision of the learned Munsif and dismissing the application for setting aside the sale has also not given the petitioners any such chance, and, as matters stand, they were altogether without any remedy.