ABDUR RAHMAN MULLICK Vs. KHORBAN MULLICK MATWALI

JUDGEMENT

(1.) THIS appeal arises out of an application under Secs.254 and 311 Civil Procedure Code 1882 to set aside a sale. It appears that a previous application of the same nature had been made and had been dismissed for default. The learned Munsif held that, no application having been made under Secs.102 and 103, Civil Procedure Code to set aside that order of dismissal, the applicant was precluded from making a fresh application of the same nature. The learned District Judge has taken a contrary view and the only question is which view is correct. We think, that on a plain reading of Section 647, Civil Procedure Code, the view which the learned Munsif took is the correct view. That section provides that the procedure prescribed in the Code should be followed, so far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction other than suits and appeals; and the explanation which was added in 1893 provided that that section should not apply to applications for execution of decrees which were proceedings in suits. On the principle " expressio unius est exclusio alerius" this section would apply to an application like the present under Secs.244 and 311, Civil Procedure Code, as such an application is not an application for the execution of a decree. The learned pleader for the respondent has relied upon the Privy Council ruling in Thakur Prasad V/s. Fakirullah 17 A. 106 (P.C.) : 22 I.A. 44. Their Lordships of the Privy Council there made some remarks with regard to Chapter XIX of the Civil Procedure Code. But it may be observed that those remarks are obiter dictum in as much as the point for decision before their Lordships was with regard to an application for execution and proceedings under Section 373, Civil Procedure Code. It was just about that time that the addition was made to Section 647 of the explanation to which we have referred. That explanation, it seems to us, puts the matter beyond doubt and after all, all that their Lordships said was that the proceedings spoken of in Section 647 included certain original matters, such as proceedings in probates, guardianship and so forth and did not include executions. We do not for a moment suggest that they do not include executions. As we have already pointed out, this is not an application for execution. Under these circumstances, we think that the order, of the learned District Judge must be set aside and that of the Munsif restored. The appellant will have his costs in all the Courts from the respondent. We assess the hearing fee in this Court at three gold mohurs. Nos. 470 and 471:

(2.) THE judgment that we have just delivered in Appeal No. 427 will apply to these cases also. We assess the hearing fee in these appeals at one gold moliur each.