MUKTARAM RAKHIT Vs. GOMASTA MAHATO

JUDGEMENT

(1.) This Rule was issued calling upon the opposite parties to show cause why the decree of this Court made by Mr. Justice Newbould and myself on 6 July 1925 should not be vacated or such other order made as might be deemed fit and proper. The rule came before my learned brothers Cuming and Mukerji, JJ., who in their order dated 17 February last expressed their opinion that it was not open to them to vacate the decree, and that the proper procedure to follow in the circumstances was the procedure described by Mr. Justice Asutosh Mookerjee in the case of Abdul Aziz V/s. Lakhmi Chandra Mazumdar A.I.R. 1923 Cal. 676, namely that the case should be placed before me for orders.

(2.) At the outset of the argument before me Mr. Chakravarti, on behalf of the opposite parties raised the question whether I had jurisdiction to hear the Rule without an order from the Chief Justice, and suggested that the formal orders of the Chief Justice should be obtained. The matter was accordingly referred to the learned Chief Justice who intimated that there is no need of any further order. It may be taken therefore that the order passed by Cuming and Mukerji, JJ., is correct and that there is no substance in the objection as to my jurisdiction.

(3.) The facts out of which this Rule has arisen are shortly these : The petitioners brought a suit for recovery of khas possession of certain plots of land against a number of defendants, one of whom was named Dolegobinda. That suit was dismissed by the Munsif on 13 May 1922. The plaintiffs appealed to the District Judge and on 31 October 1922 the appeal was decreed in favour of the plaintiffs. On 20 December 1922 a second appeal was filed in this Court by the defendants among whom was the aforementioned Dolegobinda. On 1 October 1923 Dolegobinda died. No steps were, however, taken to bring his heirs on the record in his place, and the fact of his death was not known to this Court at the time of the hearing of the appeal. The result of the appeal to this Court was that the case was remanded to the lower Court for re-hearing. Thereafter the appeal was reheard by the District Judge on 17 July 1926 and decided in favour of the defendants. The plaintiffs then filed a second appeal to this Court making Dolegobinda a party. Having now, however, as they allege, discovered that Dolegobinda died before the remand order by this Court, the plaintiffs applied for and obtained this Rule on the ground already stated.