UMESH CHANDRA MANNA Vs. AMAR NATH JANA

JUDGEMENT

(1.) IN this case which was a suit for recovery of mesne-profits, an order was made by the learned Subordinate Judge on 9 July 1925 by which he directed that the suit should stand dismissed "for the present without adjudication." Thereafter, there was an application under Order. 47, Rule 1 and Section 151, Civil P.C. The learned Subordinate Judge came to the conclusion that Order 47, Rule 1, Civil P.C., had no application but that the suit which had been dismissed on 9 July 1925 could be restored under the provisions of Section 151, Civil P.C. It is against that order that the present rule has been obtained. Now, if as a matter of fact the suit had not come to a termination by reason of the order of 9 July 1925, then no application was entertain-able under Order 47, Rule 1, Civil P.C. But the application under Order 47, Rule 1, Civil P.C., was entertained and disposed of on its merits, the learned Subordinate Judge coming to the conclusion that, on the facts. Order 47, Rule 1, Civil P.C., did not apply. He, however, made a mistake in in voking in aid the provision of Section 151, Civil P.C. It is quite clear that Section 151, Civil P.C., cannot be invoked for the purpose of restoring to the file a suit which has been dismissed. IN my opinion, the learned Subordinate Judge in invoking in aid the provisions of Section 151, Civil P.C., for the purpose of restoring the suit which had been dismissed on 9 July 1925 exercised a jurisdiction which was not vested in him by law. It follows, therefore, that the order of the Subordinate Judge restoring the suit under Section 151, Civil P.C., must be set aside. The rule is accordingly made absolute with costs hearing fee one gold mohur. Buckland, J.

(2.) I agree.