SUSHIL KUMAR CHOWDHURY Vs. ANNADA PRASANNA LAHIRI

JUDGEMENT

(1.) This Rule was issued on the opposite parties to show cause why the order of the District Judge of Pabna and Bogra, dated the 4 of August 1926, dismissing an appeal against an order made under Order 9, Rule 13, Civil P.C., on the ground of non-joinder of necessary parties, should not be set aside. The facts which are necessary to be considered for the purposes of the Rule are these : The opposite parties 1, 2 and 3 brought a suit in the Court of the Subordinate Judge of Pabna against the petitioner 1, and the mother of petitioners 3 to 8 and of the late Sir Asutosh Chaudhuri (whose estate is now represented by the petitioner 2) and 47 other persons for partition of certain lands within certain touzis of Pabna and Rajshahi Coelectorates and for specifications of their shares therein with respeot to their zemindari and patni rights; 23 other persons, who were holders of a superior interest in the touzi concerned, were subsequently added as defendants to the suit.

(2.) On the 21 February 1923 a preliminary decree was passed in the said suit; some of the defendants filed a petition of compromise and the preliminary decree was based on a compromise as against the said defendants and was ex-parte against the other defendants including the petitioners; the petitioners alleged that they were not served with summons and they came to know of the preliminary decree on the 10 April 1923; on the 27 April 1923 petitioners applied to the Court under Order 9, Rule 13 of the Civil P.C. for setting aside the ex parte decree; the Subordinate Judge dismissed the application on the 19 March 1924; against the said order of dismissal the petitioners preferred an appeal to the District Judge of Pabna making the plaintiffs and all other defendants parties to the partition suit. Respondent 30, Jatindra Nath Chakravarti, having died, his heirs were not brought on the record of the appeal within the time limited by law; respondent 50, viz., the Maharaja of Natore, having died, his heirs were not brought on the record of the said appeal. It may be mentioned here that the Maharaja is a holder of the superior interest and is not a necessary party to the suit of partition amongst the holders of the inferior interest the District Judge dismissed the appeal as the appeal had abated against respondents 30 and 50.

(3.) On these facts the present Rule was obtained and it is contended before us by the learned advocate for the petitioners that the lower appellate Court had declined jurisdiction in not hearing the appeal on the merits as the appeal before him was competently brought and notice was given to the plaintiffs who, it is contended, are "opposite parties" to the said application within the meaning of Order 9, Rule 14, Civil P.C.,) A preliminary objection has been taken to the hearing of this Rule on the ground that the Rule cannot be heard in the absence of the heirs of respondent 30. It may be stated hero that an application by the heirs of the respondent 30 for being added as an opposite party to the Rule was made to us, and we refused this application. The question raised by the preliminary objection as to the competency of the Rule depends on the view which we take as to the competency of the appeal before the lower appellate Court. On the determination of the question involved in the Rule the question raised by the preliminary objection will depend. We, therefore, proceed to consider the soundness of the point raised by the learned advocate for the petitioners. The question depends on the construction which is to be put on Order 9, Rule 14 Civil P.C. The Rule runs as follows: No decree shall be set aside on any such ap-plication as aforesaid unless notice thereof has been served on the opposite party.