P L D 1957 Dacca 271 (PLP)

IBRAHIM, J.‑

This rule arises out of an application under section 174 (3) of the Bengal Tenancy Act to set aside a rent sale. The petitioner is the auction‑purchaser. The application was made by opposite‑parties 1 and

2. On the 17th of April 1950, which was fixed for hearing, the petitioner was present, but opposite‑parties 1 and 2 were absent, and the application was dismissed for default. A review application filed by them was rejected on the 26th of June 1951, as misconceived. Then they filed an application under section 151 of the Code of Civil Procedure, and the learned Munsif set aside the dismissal order in exercise of his inherent power. The question is, whether be could do that. On the one hand it is contended that the order was open to appeal, and that, as such the learned Munsif bad no jurisdiction to set aside under section 151 of the Code, On the other hand, it is argued that no appeal lies from an order dismissing an application under section 174 (3) of the Bengal Tenancy Act for default; alternatively, it is urged that, even if any appeal lies, the Court has inherent power to set it aside. The trend of decisions is that an order dismissing an appli. cation to set aside a sale for default is appealable [Rusanta Kumar Adak v. Khirode Chandra Ghose (I L R 55 Cal. 616), Ansarali v. Bhim Shankar Dutta Tewari (33 C W N 392), Defence Nath Goldar v. Gopal Chandra Das (42 C W N 128), Haji Muhammad Kazibulla Mondal v. Humayun Reza Choudhury (42 C W N 612) and Subodh Chandra Mukherjee v. Sudhir Kumar Basu (54 C W N 106). In Debrani Debya v. Kumar Sarat Kumar Roy (39 C L J 522), Mukerjee J. sitting singly expressed the contrary view. But this case was dissented from in Haji Muhammad Kazibulla's case. In Basaratulla Mia v. Reajuddin Mia (I L R 53 Cal. 679), Page J. said that if the order of dismissal for default was passed in the absence of both the parties, no appeal would lie. In Basanta Kumar Adak's case he held that if the order is passed in the presence of the opposite‑party, it amounts to an order refusing to set aside the sale and is appeal-able. The view expressed by Page J. in Basaratulla Mia's case, was dissented from in Ansarali's case. I have not been referred to any case where it has been held that appeal does not lie from an order dismissing an application to set aside a sale for default, whereas, in this case, the order is passed in presence of the opposite‑party. It appears to be well settled that where and application to set aside a sale is dismissed for default in presence of the opposite‑party, that order is appeal-able as it amounts to an order refusing to set aside the sale. In my opinion, the learned Munsif could not set aside the order in exercise of inherent power. Inherent power cannot be invoked to restore an application which has been dismissed H for default, if from that order there is, as here, a right of appeal. That was the view I took in Abdur Rahman Miji v. Abdul Wadud Mia (42 C W N 128). I see no reason to take a different view in this case. There are some cases where it was held that the order of dismissal for default therein involved could be set aside in exercise of inherent power; Ram Shankar v. Ram Narain (33 C W N 392), Bani Prasad v Ambika Prasad (I L R 55 Cal. 616); Subodh Chandra Mukherjee v. Sudhir Kumar Basu. In the first two cases the learned Judges proceeded on the footing that there was really no default. In the first case the applicant (judg ment‑debtor) was not present when the case was called out, and the application was dismissed for default. He appeared immediately after and applied to set aside the order. Dalal J: observed that no order of dismissal for default should be passed till the end of the day when the Court was rising, because there could be no default until the Court rose for the day. In the second case the applicant appeared by 11‑15, but in the meantime the case had been dismissed for default. The learned Judge said that there was in fact no dismissal for default at all. The third case was dismissed for default on a wrong date. The learned Judge held that the order could be set aside in exercise of the inherent power as it was due to a mistake of the Court. In this case there was really no default. Default presupposes a duty to appear. There is no duty to appear on a wrong date. I have been referred to the decision of Badiuzzaman, J. in Civil Revision Case No. 471 of 1950 Karim Hassain Majumdar v. Munshi Shujat Ali Kazi alias Jitu Mia (C. R. No. 471/1950). There a miscel laneous case under section 174 (3) of the Bengal Tenancy Act was disposed of on compromise between the decree‑holder auction purchaser and the judgment‑debtor. The application under section 151 of the Code of Civil Procedure was made by the auction‑purchaser's lessee who was a party. He applied on the ground that no notice was served on him. Badiuzzaman, J. held that section 151 of the Code was applicable, and that it was no answer to tell the applicant that there was a remedy by way of appeal, for the facts alleged in the petition under section 151 could not have been established before the Appellate Court. Though plausible. this view substitutes the inherent power for the remedy provided by the Code, for this argument could apply in every case where the decision is ex parte and the person affected pleads that summons was not served on him or that he was prevented by sufficient cause from appearing. I do not, understand why in such a case the Appellate Court should be held to be impotent. If justice cannot be done otherwise than by applying section 151, the C Appellate Court is quite competent to resort to it. The application under section 151 of the Code of Civil Procedure was filed beyond the time provided in Article 163 of the Limitation Act for an application to set aside an order of dismissal for default, and Mr. Jane Alam has argued that the application was barred by limitation. To meet this contention the opposite‑parties have relied on Sabitri Bala v. Rohini Kanta Mondal (P L R 2 Dacca 1= P L D 1952 Dacca 25), where it has been held that Article 168 of the Limitation Act does not affect the inherent power of the Court under section 151 of the Code of Civil Procedure. It is argued on this authority that the Limitation Act does not affect the inherent power of the Court. This is an important question ; but in view of my decision on other points, it is not necessary to decide it in this case, and I refrain from expressing any opinion. The Rule is made absolute with costs. K. B. A. Rule made absolute.