BELAYET HOSSAIN Vs. MD. ABU TAHER

JUDGEMENT

(1.) In this appeal the question involved is whether the learned Single Judge was justified in taking a view contrary to the current of decision standing stare decisis on the point, that a refusal to set aside an ex parte order passed in an application under section 96 of the East Bengal State Acquisition and Tenancy Act is not appealable. The question involved and the decision proposed to be given does not call for any detailed recounting of facts, except that the appellants being pre-emptees is Miscellaneous Case No. 222 of 1974 of the first Court of Munsif at Lakshmipur, Noakhali filed an application under Order IX, rule 13 of the Code of Civil Procedure for setting aside the ex parte order allowing pre emption under section 96 of the State Acquisition and Tenancy Act, 1950 alleging that the pre-emptor obtained the ex parte order through fraudulent suppression of the processes. The case was dismissed on contest. Against the order the appellants moved the High Court Division in revision whereupon Rule was issued but ultimately it was discharged on the ground that an order passing an ex parte decree in a pre-emption case is also appealable under Order 43 of the Code and as such the revisional application without, preferring an appeal was not maintainable" The view taken by the learned Judge that the order was appealable and dismissal of the application under section 115 of the Code of Civil Procedure without hearing it on merits is under challenge.

(2.) After hearing the learned Counsel on both sides it appears that the questions has been well settled by a series of decision starting from 1949 till today. It is true that the earlier decisions are with regard to section 26F of the Bengal Tenancy Act but the material provisions of section 26F of the B. T. Act and those of section 96 of the East Bengal State Acquisition and Tenancy Act substantially the same. The interpretation given earlier does not militate with the language of section 96 of the Act and so applicable to the section as well. Of the current of decisions three are reported which have been cited at the Bar.

(3.) The first decision is by Akram C. J. in the case of Haji Md. Jayan Ali vs. Raju Pramanik 53 C.W.N. (1DR) 61. It was held that no appeal lies under the Civil procedure Code against an order dismissing an application under Order, 9 rule 13 of the Code for restoring a proceeding under section, 26F of the Bengal Tenancy Act which had been disposed of ex parte. The reason given for so holding is that an order dismissing an application under section 26F of the B.T. Act is not a decree and so does not come within the clear language of Order 43, rule 1(d) of the Code. The second reason is that section 141 of the Code refers merely to the procedure which is to be followed in all proceedings in any civil Court which are no suits. It does not confer any right of appeal the right of appeal being a substantive right and not mere procedure must be given by statute and cannot be assumed and there is no appeal provided by the Code against an order dismissing an application under Odr 9, rule 13 for restoring a proceeding under section 96 F of the Bengal Tenancy Act, disposed of ex parte.