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Case Number

Civil Revision Case No. 3499 of 1960

Advocates

M.N. Ghose
Narendra Kumar Bhowmick
Sukumar Sen
Advocates.

Judges

Banerjee
D. Basu, JJ.

Acts

section 174(5) of the Bengal Tenancy Act [(21) Kazibulla v. Humayun, (1938) 42 C.W.N 612; (22) Debendra v. Gopal, (1937) 42 C.W.N 128],
provisions of the Code, such as Order 9, rule 13; Order 47, rule 1; section 151.
SECTION 151 CIVIL PROCEDURE CODE
provisions of section 104, namely,an order underrule 92 of Order XXI
Order 43, rule 1(j) of the Code of Civil Procedure
(1894) 22 I.A 44, that section 141 of the Code
section 115 of the Code of Civil Procedure
rule 89, 90 or 91 of Order 21 of the Code
Section 174(5) of the Bengal Tenancy Act
section 174(3) of the Bengal Tenancy Act,
Order 9, rule 13 and Order 47, rule 1,
Order 11, rule 21, of the Code,
section 115 of the Code
provisions of Order 9
Order 43, rule 1(f).As
Order 9, rule 9,
9, rule 9

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Smart Summary

Structured Summary of the Opinion — D. Basu, J. (Division Bench)

Factual and Procedural Background

The decree-holders (Opposite Parties) executed a decree for arrears of rent. At the sale in the execution (R. Ex. No. 419 of 1954) a third party — the petitioner — purchased the holding at auction on 11.11.1954. In December 1957 the judgment-debtor (Opposite Party No. 1) applied under section 174(3) of the Bengal Tenancy Act to set aside that sale. The learned Munsif allowed that application ex parte on 24.1.1959 because the petitioner failed to appear.

The petitioner then filed an application to set aside the ex parte order setting aside the sale, invoking various provisions of the Code (Order IX, r.13; Order XLVII, r.1; and section 151). The learned Munsif dismissed that application as not maintainable, holding that Orders IX r.13 and XLVII r.1 did not apply and that section 151 could not be invoked because the order under section 174(3) was appealable under subsection (5) of that section; the learned Munsif followed Harries, C.J.'s decision in Bibhabati Devi v. Hrishikesh (83 C.L.J. 162).

The petitioner challenged the Munsif's decision by moving this Court under section 115 of the Code of Civil Procedure, alleging illegality and material irregularity in the learned Munsif's dismissal of the section 151 application.

Legal Issues Presented

Whether the inherent power under section 151 of the Civil Procedure Code can be exercised to set aside an order (here, an ex parte order allowing a section 174(3) application) where the Code provides an express remedy by way of appeal (i.e., whether the availability of an appeal precludes resort to section 151).
Whether an order under section 174(3) of the Bengal Tenancy Act that allows setting aside a sale (including an ex parte allowance) is appealable under section 174(5) of the Bengal Tenancy Act.
Whether a party who was absent at the hearing (resulting in an ex parte order) is so disadvantaged on appeal that the absence of an opportunity to adduce evidence in the original hearing renders an appeal ineffective.

Arguments of the Parties

Petitioner's Arguments

The petitioner argued that the court's inherent power under section 151 should be available even when an express provision for appeal exists; section 151 exists to secure substantial justice when the Code is not exhaustive and should be applied to prevent injustice.
The petitioner further contended that section 174(5) of the Bengal Tenancy Act does not permit an appeal from an ex parte order setting aside a sale, relying on a line of decisions to that effect; consequently, she argued that an appeal was not available and section 151 was the only means of relief.
The petitioner also submitted that she could not effectively meet the ex parte evidence or prove sufficient cause for non-appearance on appeal because she would be unable to adduce evidence on appeal, and therefore section 151 should have been available to permit adducing such evidence.

Opposite Parties / Learned Munsif's Position (as recorded)

The learned Munsif held that Orders IX r.13 and XLVII r.1 did not apply because their conditions were not met in the petitioner's case.
He further held that section 151 could not be invoked because the order allowing the application under section 174(3) was appealable under subsection (5) of that section; therefore appeal was the only remedy. He followed the decision of Harries, C.J., in Bibhabati Devi v. Hrishikesh (83 C.L.J. 162).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bibhabati Devi v. Hrishikesh, (1947) 83 C.L.J. 162 (Harries, C.J.)	Holding that section 151 could not be invoked where an express remedy of appeal exists (following a line of High Court decisions).	Relied upon by the learned Munsif; the Division Bench explained this decision as following earlier High Court authorities and not inconsistent with later Supreme Court authority when properly distinguished.
Keshardeo v. Radhakishen, (1953) S.C.R. 136 (also cited as (1952) S.C.A. 775 in the opinion)	Permitted the application of section 151 where there was no right of appeal or other specific remedy under the Code; allowed Subordinate Judge to rectify his own mistake under s.151.	Distinguished by the Division Bench: the Supreme Court applied s.151 in a context where no appeal lay; hence it did not overrule the High Court line of authorities that s.151 is not available where appeal exists.
Hukum Chand v. Kamalanand, (1906) 33 Cal. 927	Explains that section 151 exists because the Code is not exhaustive; courts may use inherent powers where the Code is silent.	Used to show the origin and scope of s.151 and to support the proposition that s.151 may be invoked where the Code does not provide a remedy.
Rameswar v. Lala, A.I.R. 1925 Pat. 36	Authority for the proposition that no court can exercise inherent power to do what the Code expressly prohibits.	Cited in support of the general limitation on inherent powers (that they cannot override express statutory prohibitions).
Narsingdas v. Mangal, (1883) 5 All. 163	Support for the proposition that inherent power can be used where neither prohibition nor express provision exists.	Relied upon as part of a line of cases defining the scope of s.151 where the Code is silent.
Sarat v. Biseswar, (1926) 31 C.W.N. 576	Applied s.151 to restore an application dismissed for default where no express procedural provision existed; illustrates when s.151 may be invoked.	Used by the Court to show that s.151 may be resorted to when the Code does not provide a remedy for a particular procedural situation.
Nandkishore v. Ramgolam, (1913) 40 Cal. 955	Another authority supporting the inherent power where the Code is silent.	Referenced as part of the jurisprudential consensus on the limits and use of s.151.
Joshi v. Jhinguria, (1923) 46 All. 144	Principle that where the Code itself makes an express provision for a remedy, a party who does not avail himself of the remedy cannot, as a rule, resort to section 151.	Relied upon to support the rule that s.151 is not generally available where an express remedy (such as appeal) is provided.
Sheolal v. Jugal Kishore, I.L.R. (1940) Nag. 538	Supports the proposition that s.151 cannot be used when an express remedy exists.	Included among Nagpur High Court authorities supporting the principle that appeal excludes resort to s.151.
Kishna Kumar v. Jawan Singh, A.I.R. 1947 Nag. 236	Held that s.151 could not be used to set aside an order dismissing a suit under Order XI r.21 where an appeal lay under Order XLIII r.1(f).	Used to illustrate application of the principle in a Nagpur High Court precedent.
Ajadhya v. Phul Kuer, A.I.R. 1922 Pat. 479	Patna High Court authority on the limitation of s.151 where a statutory remedy exists.	Referenced among Patna High Court cases to show a consistent view across High Courts.
Baikunth v. Siddique, A.I.R. 1958 Pat. 27	Another Patna decision aligned with the principle that s.151 is not available where an appeal or statutory remedy exists.	Cited as part of Patna High Court authorities supporting the same rule.
Abdul Jubbar v. Azizur Rahaman, (1937) 41 C.W.N. 893 (Division Bench)	Clear Division Bench statement that if the Code gives a right of appeal and the litigant does not exercise it, he cannot seek to invoke the court's inherent powers to undo his own default.	Relied upon to reinforce the principle that s.151 cannot be used as a substitute for an existing appellate remedy.
Thakur Prasad v. Fakirullah, (1894) 22 I.A. 44 (Privy Council)	Held that section 141 would not attract the provisions of Order IX and similar provisions to execution proceedings which are not 'original matters in the nature of suits'.	Used to explain why Order IX procedures are not available for execution proceedings and to show the absence of an alternative remedy in certain contexts (as distinguished in Keshardeo's case).
Debi Baksh v. Habib, (1913) I.L.R. 35; 17 C.W.N. 829 All 331 (P.C.)	Recognised an inherent power (and the application of s.151) to rectify an inadvertent mistake of the Court itself; invoked the maxim actus curiae neminem gravabit.	Referred to as an example of an exceptional case where s.151 may be invoked despite the availability of other remedies because the court's own mistake prejudiced a party.
Peary v. Sonoo, (1914) 19 C.W.N. 419	Illustrative authority on fraud practiced on the Court as an exceptional circumstance allowing inherent power to be used.	Cited among examples of exceptional circumstances (fraud on the Court) where s.151 may be justified.
Akina v. Mohammad, (1940) 45 C.W.N. 392	Another case cited as an example where fraud on the Court justified exceptional application of inherent powers.	Included to illustrate the narrow exceptional category permitting s.151 despite alternate remedies.
Basanta v. Kshirode, (1927) 55 Cal. 616	Held that an order disposing of an application to set aside a sale under Order XXI (rules 89–91) is appealable whether based on contest or allowed ex parte or dismissed for default.	Relied upon to show that orders setting aside or refusing to set aside sales are appealable even if allowed ex parte.
Ansar v. Bir Sankar, (1929) 33 C.W.N. 392	Similar authority holding that orders disposing of applications to set aside sales are appealable even when ex parte.	Used to reinforce the point that appealability of sale-related orders is well-established.
Kazibulla v. Humayun, (1938) 42 C.W.N. 612	Single Bench decision holding section 174(5) of the Bengal Tenancy Act to be in pari materia with the Code and that the sale-setting-aside order is appealable.	The Division Bench accepted this view and found no reason to differ; cited to support appealability under section 174(5).
Debendra v. Gopal, (1937) 42 C.W.N. 128	Single Bench decision to the same effect as Kazibulla regarding section 174(5) and appealability.	Relied upon, together with Kazibulla, to hold that section 174(5) permits an appeal from orders setting aside or refusing to set aside a sale.
Gnanendra v. Prafullananda, (1927) 32 C.W.N. 101	Held that on an appeal from an ex parte decree it is open to the appellant to urge that there was sufficient cause for non-appearance.	Applied to answer the petitioner's contention that she could not adequately challenge the ex parte order on appeal; the Court held that such contentions can be urged on appeal.

Court's Reasoning and Analysis

The Division Bench (D. Basu, J., with Banerjee, J. agreeing) approached the problem in two stages: first by addressing the scope of section 151 in the context of an existing statutory appeal remedy, and second by deciding whether the particular order complained of (an ex parte allowance of a section 174(3) application to set aside a sale) was appealable under section 174(5) of the Bengal Tenancy Act.

On the first issue (scope of section 151), the Court reviewed earlier High Court authorities and distilled the settled propositions: (I) no court can use inherent power to do what the Code expressly prohibits; (II) where neither prohibition nor provision exists, courts may use inherent power to secure ends of justice; and (III) where the Code makes an express provision for a remedy, the party ordinarily must use that remedy and cannot resort to s.151 to defeat the Code's purpose. The Court cited a line of High Court decisions and a Division Bench decision (Abdul Jubbar) to show that Harries, C.J.'s view in Bibhabati Devi was consistent with established High Court doctrine.

The Court then examined the Supreme Court decision in Keshardeo v. Radhakishen and explained that it did not overrule the High Court line of authorities. Rather, Keshardeo applied s.151 in a different factual situation — one where no appeal or other specific remedy existed under the Code (an execution was dismissed for default and no appeal lay) and where the Judge's own omission prejudiced the party. Thus Keshardeo approved the use of s.151 where the substantive condition for its application — absence of any other remedy and the ends of justice requiring rectification — was present.

Turning to the facts of the present case, the Court focused on whether the order allowing the section 174(3) application was itself appealable under section 174(5). The Bench found that section 174(5) ("An appeal shall be against an order setting aside or refusing to set aside a sale.") is in pari materia with Order XLIII r.1(j) of the Code (appeal against an order under rule 92 of Order XXI setting aside or refusing to set aside a sale), and relied on established authorities (including Basanta v. Kshirode and Ansar v. Bir Sankar) that such orders are appealable whether decided on contest, allowed ex parte, or dismissed for default.

The Court further noted two Single Bench decisions interpreting section 174(5) in the same way (Kazibulla v. Humayun and Debendra v. Gopal) and accepted their view. The Bench also addressed the petitioner's submission that an appellant cannot adequately contest an ex parte order on appeal because of inability to adduce evidence — the Court referred to Gnanendra v. Prafullananda, where the Division Bench held it is open to an appellant in an appeal from an ex parte decree to urge sufficient cause for non-appearance.

The Bench acknowledged that extraordinary cases might permit the invocation of s.151 even when another remedy exists (for example, where the Court itself has committed a mistake or omission — actus curiae neminem gravabit — or where fraud on the Court is shown), but observed that no such exceptional circumstances had been demonstrated by the petitioner in this case.

On these bases, the Court concluded that s.151 was not available to the petitioner because the impugned order was appealable under section 174(5); the Supreme Court authority in Keshardeo did not displace that conclusion because it concerned a different factual matrix where no appeal lay.

Holding and Implications

Holding: The petitioner's application must fail and the Rule is discharged.

Immediate consequences and practical effect:

The petition under section 115 challenging the learned Munsif's dismissal of the application under section 151 was dismissed — the application failed and the rule was discharged.
There was no order as to costs (explicitly recorded by the Court).
The Court treated the impugned order (an ex parte order allowing an application under section 174(3) to set aside a sale) as appealable under section 174(5) of the Bengal Tenancy Act; accordingly, the petitioner must pursue relief by appeal rather than by invoking section 151 in the facts of this case.
The Bench did not purport to lay down a new broad principle departing from earlier authorities; it distinguished the Supreme Court decision in Keshardeo on the basis of differing factual and remedial contexts and reiterated established limits on the use of section 151 where a statutory appeal remedy exists.

Note: This summary is strictly confined to the matters discussed in the provided opinion. No information has been added beyond what appears in the opinion.

Judges: D. Basu, J. (majority opinion); Banerjee, J. concurred.

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Sibani Rani Dutta v. Balai Chandra Dutta & Ors. Opposite Parties.

D. Basu, J.:— Chatterjee, J. has referred this application under section 115 of the Code of Civil Procedure to the Division Bench on the ground that his Lordship found very great difficulty in reconciling the decision of Harries, C.J, sitting singly, in (1) Bibhabati Devi v. Hrishikesh, (1947) 83 C.L.J 162, with the decision of the Supreme Court in (2) Keshardeo v. Radhakishen, (1953) S.C.R 136.

1. In the case before us, the decree-holder Opposite Parties put their decree for arrears of rent against the judgment-debtor Opposite Parties into execution, and at the sale held in that execution case (R. Ex. No. 419 of 1954), the petitioner, a third party, auction— purchased the holding on 11.11.54 An application for setting aside the sale, under section 174(3) of the Bengal Tenancy Act, was brought by the judgment-debtor Opposite Party No. 1, in December, 1957. This application was allowed ex parte by the learned Munsif, on account of the failure of the petitioner to appear on the date of hearing (24.1.59). Thereupon, the petitioner filed an application for setting aside the said ex parte order by which the learned Munsif had allowed the application under section 174(3) of the Bengal Tenancy Act and set aside the sale, on the ground that her husband, who used to look after her case, was unable to appear on the date of hearing owing to illness. This petition was labelled under various provisions of the Code, such as Order 9, rule 13; Order 47, rule 1; section 151. The learned Munsif dismissed this application as not maintainable. As to Order 9, rule 13 and Order 47, rule 1, he held that those provisions were not applicable since the conditions of their applicability were not present in the petitioner's case.

2. As regards section 151, which was patently wide in its language, the learned Munsif held that since the order allowing the application under section 174(3) of the Bengal Tenancy Act was appealable under sub-section (5) of that section, section 151 of the Civil Procedure Code could not be invoked to set aside that order as appeal was the only remedy. In coming to this conclusion, the learned Munsif followed the decision of Harries, C.J in (1) 83 C.L.J 162, referred to at the outset.

3. The petitioner has, thereupon, moved this Court under section 115 of the Code on the ground that the learned Munsif has acted illegally and with material irregularity in the exercise of his jurisdiction in dismissing the petitioner's application under section 151 on the ground that it was not maintainable in law. Learned Advocate for the petitioner, has made a two-fold argument in support of this contention on behalf of the petitioner.

A. It has firstly been urged that the inherent power under Sec. 151 should not be refused even if there is a provision for appeal against the order complained of. Section 151 having been provided for to ensure the inherent power of the court to do substantial justice upon the assumption that the Code is not exhaustive [(3) Hukum Chand v. Kamalanand, (1906) 33 Cal. 927] and it is not possible for a Code of Procedure to anticipate and to “regulate for all time to come so as to make express provision against all inconveniences, which are infinite in number and so that their dispositions shall express all the cases that may probably happen”, as observed by Peacock, C.J in (4) Hurro v. Shurodhonee, (1868) 9 W.R 402 (406) F.B, it is natural that the highest courts of the land would be anxious to preserve this great charter to secure real justice in cases where the dictates of their judicial conscience demand that such justice must be done even though the written Code, not being exhaustive, has failed to provide for a situation as that in a particular case before the Court. But even though no court can or should catalogue the circumstances in which section 151 may be properly applied, and differences in shades of opinion are bound to occur so long as section 151 remains on the statute book, several broad propositions may be taken to have been settled by a consensus of judicial opinion:

I. No Court can have an inherent power to do what is expressly prohibited by the Code [Cf. (5) Rameswar v. Lala, A.I.R 1925 Pat. 36: (6) Narsingdas v. Mangal, (1883) 5 All. 163 (172); (7) Sarat v. Biseswar, (1926) 31 C.W.N 576].

II. But in matters which are neither prohibited nor expressly provided for, the Court has an inherent power to adopt such procedure as is necessary for securing the ends of justice or to prevent abuse of the process of the Court, having regard to the particular facts and circumstances of a case (6) [Narsingdas v. Mangal, ibid.; (3) Hukumchand v. Kamalanand, ibid.; (8) Nandkishore v. Ramgolam, (1913) 40 Cal. 955(959); (7) Sarat v. Bisweswar, ibid.].

III. Where the Code itself makes an express provision for a particular remedy, the party, who does not avail of such remedy, cannot, as a rule, be allowed to resort to section 151, for, to do so would be to defeat the object and utility of the Code itself.

This principle has been laid down by the Allahabad High Court in the case of (9) Joshi v. Jhinguria, (1923) 46 All. 144.

Similar view has been taken by the Nagpur High Court in (10) Sheolal v. Jugal Kishore, I.L.R (1940) Nag. 538(548); (11) Kishna Kumar v. Jawan Singh, A.I.R 1947 Nag. 236. In this latter case it was held that section 151 could not be resorted to for setting aside an order of dismissal of a suit under Order 11, rule 21, of the Code, inasmuch as it was appealable under Order 43, rule 1(f).

As to the Patna High Court, we may refer to (12) Ajadhya v. Phul Kuer, A.I.R 1922 Pat. 479 and (13) Baikunth v. Siddique, A.I.R 1958 Pat. 27, to the same effect.

It is needless to refer to cases of other High Courts supporting this view.

In our own Court, this principle was enunciated in the early case of (3) Hukum Chand v. Kamalanand, (1906) 33 Cal. 927. In that case, Woodroffe, J. observed—

“The essence of a Code no doubt is to be exhaustive on the matters in respect of which it declares the law. On any point specifically dealt with by it the law must be ascertained by interpretation of the language used by the Legislature.”

In (7) Sarat v. Bisweswar, (1926) 31 C.W.N 576, where section 151 was applied to restore an application under Order 9, rule 9, which itself had been dismissed for default, the ratio was that there was no express provision in the Code to provide the procedure for setting aside an order of dismissal for default of a proceeding other than a suit or original proceeding of that nature, to which alone section 141 was attracted. In this case, Mukherji, J. observed—

“….where there is no provision in the Code expressly providing for a remedy and none which prohibits a remdey being administered and such remedy is called for in order that real and substantial justice for the administration of which it exists, the provision of section 151 may and should be resorted to.”

A clearer pronouncement was made by a Division Bench in (14) Abdul Jubbar v. Azizur Rahaman, (1937) 41 C.W.N 893, to the effect that if the Code gives a litigant a right of appeal and he does not choose to exercise it, then he has no right whatsoever to approach the Court and ask the Court to exercise its inherent powers to save him from his own default and carelessness.

In (1) Bihabati's case, (1947) 83 C.L.J 162, therefore, Harries, C.J, was merely following a line of previous decisions of this Court.

If we now turn to the decision of the Supreme Court in (2) Keshardeo v. Radhakissen, (1952) S.C.A 775, it would at once be evident that the Supreme Court did not intend to overrule the proposition laid down by the series of High Court decisions just referred to. In fact, that case related to a different state of facts, namely, where there was not only no right appeal but no other specific remedy provided for by the Code, and in this situation, the Supreme Court approved of the application of section 151 by the Subordinate Judge to give relief where injustice had been done to a party by the Judge's own mistake. What had happened in that case was that an execution case was dismissed for default by the Subordinate Judge after rejecting the decree-holder's petition for adjournment for taking steps. The rejection of the petition for adjournment was not communicated to the decree-holder's pleader and the execution case was dismissed forthwith by the same order without giving an opportunity to the decree-holder's lawyer to make any submission which he might possibly make, with reference to the record or otherwise. The decree-holder thereafter presented an application under section 151 to have the order of dismissal set aside and the Subordinate Judge allowed that application and restored the execution case, on the ground that his omission to communicate to the decree-holder's pleader the result of his petition for adjournment before making the order of dismissal was a ‘sad omission’ which he should, in the ends of justice, rectify, under section 151, because there was no other remedy under the Code and “section 151 is the only section which empowers me to rectify the said omission”. This order was set aside by the High Court; the Supreme Court held that the order allowing the application under section 151 was not appealable; nor was it without jurisdiction on the part of the Subordinate Judge to rectify his own mistake and that accordingly, it could not be set aside by the High Court under Sec. 115 of the Code, so that the order of the High Court itself was without jurisdiction.

What is to be noted in the present context is that the order of dismissal of the execution case which was set aside by the Subordinate Judge under section 151 in (2) Keshardeo's case (ibid.) was not appealable. Nor was order 9, rule 9 available to have it set aside, for, as pointed out in (7) Sarat v. Bisweswar, (1926) 31 C.W.N 576 (578), it had been settled since the Privy Council decision in (15) Thakur Prasad v. Fakirullah, (1894) 22 I.A 44, that section 141 of the Code would not operate to attract the provisions of Order 9 and like provisions relating to suits to execution proceedings which were not ‘original matters in the nature of suits’. Hence, it is evident that in the case before the Supreme Court, there was no specific provision in the Code providing a remedy for the dismissal for default of an execution case and, in these circumstances, the application of section 151 was considered by the Supreme Court to be right and proper, — the substantive condition for the application of that section having been present, namely, that it was called for for the ends of justice.

We have, therefore, to conclude that the apprehension of Chatterjee, J., that the view taken by Harries, C.J, in (1) 83 C.L.J 162 was no longer tenable in view of the Supreme Court decision in (2) Keshardeo's case (ibid.), is not well-founded, and, as we shall presently see, an order allowing, ex parte, and application for setting aside a sale under section 174(3), which is the subject-matter in the case before us, is appealable, and that makes all the difference.

IV. There may, of course, be extraordinary cases, where the application of section 151 may be justified even though there may be an alternative remedy. One of such exceptional cases may be where the Court itself had committed such mistake or such omission as may itself be termed an abuse of the process of the Court. In such cases, the Court is bound to rectify its mistake according to the maxim — “actus curiae neminem gravabit” (an act of Court shall prejudice no man). In this context, reference may be made to the observations of the Judicial Committee in the case of (16) Debi Baksh v. Habib, (1913) I.L.R 35 : 17 C.W.N 829 All 331 (337) P.C The Deputy Commissioner of Oudh had, in that case, dismissed for default a suit for the non-appearance of a plaintiff who was dead before the date of hearing. On an application under Order 9, rule 9, the Deputy Commissioner set aside the order of dismissal and restored the suit. This order was reversed by the Judicial Commissioner. On appeal, the Judicial Committee referred to section 151, even though the Deputy Commissioner had purported to act under Order 9, rule 9,—

“Quite apart from section 151 any Court may have rightly considered itself to possess an inherent power to rectify the mistake which had been inadvertently made. But section 151 could never be invoked in a case clearer than the present.”

Another exceptional case may be where fraud has been practised upon the Court itself to obtain the impugned order [vide (17) Peary v. Sonoo, (1914) 19 C.W.N 419; (18) Akina v. Mohammad, (1940) 45 C.W.N 392].

In the case before us, however, we need not pursue this branch of the law, since no exceptional circumstances like the above have been pointed out to us in support of the argument that section 151 should have been applied even though the order complained of was appealable.

B. It is next urged on behalf of the Petitioner that no appeal lies under section 174(5) from the order complained of inasmuch as there was no decision on contest and the application under section 174(3) was allowed ex parte on account of the absence of the Petitioner by an array of decisions of this Court. Section 174(5) of the Bengal Tenancy Act is in these words—

“An appeal shall be against an order setting aside or refusing to set aside a sale.”

This provision is similar to that in Order 43, rule 1(j) of the Code of Civil Procedure which is as follows:—

“An appeal shall lie from the following orders under the provisions of section 104, namely,—

an order under……rule 92 of Order XXI setting aside or refusing to set aside a sale.”

4. As regards the above provision of the Code it has been held in a number of cases that an order disposing of the application to set aside the sale under rule 89, 90 or 91 of Order 21 of the Code is appealable, whether it is based on a decision on contest or it is allowed ex parte or dismissed for default [(19) Basanta v. Kshirode, (1927) 55 Cal. 616; (20) Ansar v. Bir Sankar, (1929) 33 C.W.N 392].

5. It has been held in two Single Bench cases that the same view must be taken as regards the interpretation of Section 174(5) of the Bengal Tenancy Act [(21) Kazibulla v. Humayun, (1938) 42 C.W.N 612; (22) Debendra v. Gopal, (1937) 42 C.W.N 128], which is in pari materia and we find no reason to differ from these decisions.

6. It has next been contended on behalf of the petitioner that it was not possible for her to urge in an appeal from the ex parte order that her husband was unable to appear on the date of hearing for sufficient cause nor to meet the ex parte evidence of the applicant upon which the ex parte order had been made unless she was allowed to adduce evidence on her behalf. To this the answer is furnished by the Division Bench in (23) Gnanendra v. Prafullananda, (1927) 32 C.W.N 101, where Mukherji, J., upon a review of the authorities, held that in an appeal from an ex parte decree it was open to the appellant to urge that these was sufficient cause for his non-appearance on the date of hearing.

7. For the reasons aforesaid, this application must fail. The Rule is, accordingly, discharged, but without any order as to costs.

Banerjee, J.:— I agree with the order made by my Lord.

S.K.B

Sibani Rani Dutta v. Balai Chandra Dutta & Ors. Opposite Parties.

Structured Summary of the Opinion — D. Basu, J. (Division Bench)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Opposite Parties / Learned Munsif's Position (as recorded)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sibani Rani Dutta v. Balai Chandra Dutta & Ors. Opposite Parties.

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