Calcutta High Court
Umesh Chandra Manna vs Amar Nath Jana on 5 December, 1927
Equivalent citations: 114IND. CAS.672, AIR 1929 CALCUTTA 158
JUDGMENT Charu Chunder Ghose, J.
1. In this case which was a suit for recovery of mesne profits, an order was made by the learned Subordinate Judge on the 8th July, 1925, by which he directed that the suit should stand dismissed "for the present without adjudication," Thereafter, there was an application under Order XLVII, Rule 1 and Section 151, Code of Civil Procedure. The learned Subordinate Judge came to the conclusion that Order XLVII, Rule 1, Code of Civil Procedure, had no application but that the suit which had been dismissed on the 9th July, 1925, could be restored under the provisions of Section 151, Code of Civil Procedure. 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 the 9th July, 1925, then no application was entertainable under Order XLVII, Rule 1, Code of Civil Procedure. But the application under Order XLVII, Rule 1, Code of Civil Procedure, was entertained and disposed of on its merits, the learned Subordinate Judge coming to the conclusion that, on the facts, Order XLVII, Rule 1, Code of Civil Procedure, did not apply. He, however, made a mistake in invoking in aid the provisions of Section 151, Code of Civil Procedure. It is quite clear that Section 151, Code of Civil Procedure, 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, Code of Civil Procedure, for the purpose or restoring the suit which had been dismissed on the 9th 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, Code of Civil Procedure, must be set aside. The Rule is accordingly made absolute with costs hearing-fee one gold mohur.
Buckland, J.
2. I agree.