BASARATULLA MEAN Vs. REAZUDDIN MEAN

JUDGEMENT

(1.) The facts of the case out of which these two Rules, which were granted by my learned brothers Greaves and Panton, JJ., arise are briefly these: A certain property was mortgaged by the tenant, one Ganga Charan Sen. A mortgage decree was obtained. The petitioner is the assignee of this mortgage-decree. The mortgage-decree was obtained on the 19 July, 1922. The landlord of the tenant who had mortgaged the property obtained a rent-decree against the tenant for arrears of rent of the property. The property was sold in execution of the rent- decree on, 22nd November, 1924. The petitioner coming to know of this made an application on 20 January, 1925, under order XXI, Rule 90 to set aside the sale on the usual grounds. Notices were issued, and after various adjournments the case was fixed for 4 July, 1925. When the case was called on for hearing neither party was present and the Munsif dismissed the application. The petitioner then applied under Order IX, Rule 4 to the Munsif on 6 July, 1925, to restore the case and also on 9 September, 1925, made an application, under Order XLVII, Rule 1, for a review of the order.

(2.) Both these applications were rejected. The learned Munsif held following the ruling in Narendra Nath Chatterji V/s. Rakhal Das , that Order IX of the Code does not apply to execution proceedings. With regard to the application for review the learned Munsif held that Order XLVII, Rule 1 had no application. Against these two orders these Rules have been obtained. The Rules must be discharged for the following reasons: In the first place I cannot see how either order comes within the mischief of Section 115, C.P.C.

(3.) Take first of all the order of the learned Munsif refusing to review the order under Order XLVII, Rule 1.