(1.) This is a Rule calling upon the District Magistrate of Mymensingh to show cause why the orders of the District Judge of Mymensingh, dated the 28 October 1925, and 11 November 1925, should not be set aside or such other or farther order made as to this Court may seam fit and proper on the ground that the District Judge had no, jurisdiction whatever to dismiss the appeal of the petitioners, under Section 123 of the Criminal P. C., without looking into the record and considering the same. In order to understand the precise significance of the ground taken in this Rule, it will be necessary to set out briefly the facts giving rise to the appeal, the dismissal of which has led to the present application being made to us. The facts are as follows: It appears that the Additional Munsif, Sadar, in the district of Mymensingh, decreed a suit in, ejectment brought by Raja Jagat Kishora Acharya Chowdhry against the petitioner. Thereafter, the learned Munsif, at the instance of the plaintiff, filed a complaint b if ore the Magistrate against the said petitioners - Nasaruddin Khan and Madan Sheikh - or having committed certain offences punishable under Secs.193, 465, 467 and 471 of the I.P.C. This complaint was one which was marla under Section 476 of the Criminal P.C. Thereafter, an appeal was filed before the District Judge against the order of the Munsif making or filing the said complaint. It was registered as Miscellaneous Appeal 280 of 1924. The appeal was admitted by the District Judge on the 24 September 1924, and it cams on for hearing, after service of notice on the respondents, and after the record had been called for, before the District Judge on the 5 December 1924, when, it appears, the pleader for the appellants, after arguing the appeal for some time, stated that he could not proceed further with the appeal on that date as he was engaged otherwise and as the arguments would take some time.
(2.) The hearing of the appeal was adjourned, and it appears that the matter did not come on again before the District Judge till the 22 December, 1924, when it was thought desirable that the appeal, which the appellants, that is, Nasaruddin Khan and Madan Sheikh, had filed against the decree of the Munsif in tli8 said suit, should be heard along with the appeal against the order of the Munsif filing or making the complaint under the provisions of Section 476 of the Criminal P.C. The hearing of this appeal, that is to say, the appeal against the order of the Munsif filing or making the complaint, was accordingly a learned. It next came on for hearing on 28 October 1925, before the District Judge, when the pleaders for the appellants were absent and the pleader for the respondent was present. The District Judge, after looking into the record, found that the hearing by the Magistrate of the complaint made by the Munsif had been delayed for more than a year; he came to the conclusion that no further time could be allowed, and he thereupon dismissed the appeal.
(3.) An application for revival of the appeal was filed, and that came on for hearing before the District Judge on 11 November 1925. The District Judge, after hearing the parties, was of opinion that hi was unable to re-admit the appeal, and he, accordingly, affirmed the order which had been previously made by him and rejected the application for rivival of the appeal. Against the two last-mentioned orders the present petition was filed and the present Rule obtained.