P L D 1963 Dacca 462 (PLP)

2. In fact the title suit referred to above was decreed on contest as against defendant No. 1 and ex parte against other defendants. Defendant No. 3 against whom the title suit was decreed ex parte made an application for setting aside the ex parte decree under Order IX, rule 13, Civil Procedure Code and this application was heard and allowed ex parte on 17‑12‑

60. The grievance of the present petitioners who were plaintiffs in the original title suit referred to above was they got no notice of the said Miscellaneous Case No. 149 of 1960, inasmuch as the pro cesses in relation thereto have been suppressed fraudulently. Further contention of the petitioner was that the decree in the title suit was passed as early as 3‑1‑59 whereas the application under Order IX, rule 13, Civil Procedure Code was made on 23‑8‑

60. There was nothing to show that the applicant in that miscellaneous case was entitled to get the benefit of section 18 of the Limitation Act.

3. It appears from the relevant part of the order dated 17‑12‑60 as quoted in the application before this Court that the question of limitation was not at all considered by the learned Munsiff. Be that as it may, the learned Munsiff did not also go into the question as to whether any notice of the said Miscellaneous Case No. 149 of 1960 was served on the plaintiffs‑petitioners as alleged. He disposed of the matter in Miscellaneous Case No. 182 of 1960 simply on the ground of maintainability.

4. Both the learned Advocates have been heard on the question of maintainability of an application made by the plaintiffs‑petitioners for the purpose of getting rid of an anomalous situation brought about as a result of the decree in the title suit being set aside ex parte. Whatever might have been the view of the learned Munsiff there is no reason as to why he should not have addressed himself to the questions of the fact as raised by the present petitioners, on the other hand, it seems curious to find that the plaintiffs‑petitioners who are interested in maintaining the decree obtained after contest should allow the same to be set aside ex parte even though as alleged they have got notice of the application under Order IX, rule 13, Civil Procedure Code.

5. The learned Advocate for the opposite‑party has contended before me that the petitioners filed an application under Order XLVII, rule 1 read with section 151, Civil Procedure Code on 28‑12‑

60. But did not take any steps for moving this Court under section 115, Civil Procedure Code. As such, according to the learned Advocate, the application as made under section 151, Civil Procedure Code was misconceived. His contention in substance is that there being other remedies under the Code of Civil Procedure open to the present petitioners they could not take shelter under section 151, Civil Procedure Code.

6. Mr. Nag appearing on behalf of petitioners has of course conceded that the application in so far it was purported to be made under Order XLVII, rule 1, Civil Procedure Code was not competent but he stressed on the point that the remedy under section 115, Civil Procedure Code is more or less a matter of discretion and as such it cannot be regarded as a normal course of remedy which might be regarded as one of such remedies provided in the Civil Procedure Code might stand against the maintainability of the application like this.

7. It is not disputed that for ends of justice inherent powers of the Court can be exercised under section 151, Civil Procedure Code whereas the scope of section 115, Civil Procedure Code is more or less of a limited type and as such it is not a regular remedy which an aggrieved party can seek as a matter of right. No authority has been placed before me to support the proposition that where a party was free to move this Court under section 115, Civil Procedure Code should be deemed to have precluded himself from seeking justice under section 151, Civil Procedure Code. I am therefore of the opinion, having regard to the facts and circumstances of the present case, that the application as made under section 151, Civil Procedure Code could not be thrown in limine on the ground of maintainability. The learned Munsiff ought to have treated it as a proper application under section 151, Civil Procedure Code and heard and disposed of the same on merits.

8. The result, therefore, is that this Rule is made absolute. The order complained against is set aside and the learned Munsiff is directed to hear and dispose of the Miscellaneous Case No. 182 of 1960 on merits after giving opportunity to the parties to give evidence There will be no order as to costs in this Rule. The learned Advocate for the opposite‑party is permitted to take back the annextures to the affidavit‑in‑opposition filed in Court to‑day. K. B. A. Rule made absolute.