P L D 1952 Dacca 286 (PLP)

(b) Civil Procedure Code (V of 1908), O. XLIII, r. 1 (d) ‑Order rejecting an application for setting aside an order passed ex parte‑Whether appealable. An order on an application to set aside an ex parse order, does not become appealable under clause (d) of O. XLIII, r.

1. Haji Muhammad Jayan and others v. Raju Paramanick and others 53 C W N I D R

61. Sris Chandra Dutt for Petitioner. Bhagirath Chandra Das for Opposite‑Parties. IBRAHIM, J.‑

This Rule has been obtained by Seferaddi Munshi pre‑emptor under section 26F of the Bengal Tenancy ‑Act. The sale in question took place on the 19th March 1945. He applied for pre‑emption on the 29th June 1945. The case was numbered as Miscellaneous Case‑ No. 608 of 1945. This Miscellaneous case was fixed for the 4th January 1947, for positive hearing. The vendee opposite party No. 1 who had filed objection did not appear on the aforesaid date of positive hearing. The result was that the application was allowed ex parse. The opposite party No. 1 thereafter filed an application under Order IX, rule 13 of the Code of Civil Procedure for setting aside the ex parse order. This application was dismissed on contest on the 22nd May 1948, and an appeal was taken from the order of dismissal to the District Judge of Bakarganj and was heard by the learned Second Subordinate Judge who allowed the appeal. The petitioner thereafter obtained this rule. A preliminary objection has been taken by Mr. Bhagirath Chandra Das who appears for the opposite parties. He points out that opposite party No. 2, the vendor died and his heirs were not substituted within 90 days. The rule has abated so fat as heirs of opposite party No. 2 are concerned. The contention of Mr. Bhagirath Chandra Das is that in the absence of the vendor or his representatives‑in‑interest the rule must be discharged as against the other opposite parties. This brings in the question as to whether a vendor is a necessary party in a case of pre‑emption under section 26F of the Bengal Tenancy Act. It seems to me that he is not, as by the transfer he loses all his interest in the property and the proceeding is essentially between the vendee and the pre‑emptor. Reference in this connection may be made to the case of Nibaran Chandra Bhattacharjee v. Hem Nalini Debi and another 61 C L J 310 and to the case of Gobinda Chandra Choudhury and others v. Narendra Kumar Choudhury 37 C W N

914. In both these cases the view) taken was that the vendor was not a necessary party in this case of pre‑emption under section 26F of the Bengal Tenancy Act No doubt these cases related to landlord's pre‑emption, under section 26 of the Bengal Tenancy Act as it then stood. But that makes no difference. The principle is the same. The question is whether the vendor who loses 'his right in the property by the sale is a necessary party or not. I respect fully agree with the view taken in these cases. The pre liminary objection raised by Mr. Das has no substance. The point raised by Mr. Sris Chandra Dutt in support of the rule is that the appeal before the District judge was not competent, in view of the fact that Order XLIII, rule 1 (d) of the Code of Civil Procedure which permits an appeal from an order under Order IX, rule 13 of the Code of Civil Procedure does not contemplate any appeal from an order rejecting an application for an order to set aside an order passed ex‑parte. The right of appeal allowed by Order XLIII, rule 1 (d), Code of Civil Procedure is limited only to an order rejecting an application for an order to set aside a decree passed ex‑parse. What is essential is that the application under Order IX, rule 13, must be an application for an order to set aside an ex‑parse decree. It is an application to set aside an ex‑parse order, as in this B case, an order rejecting the application does not become appealable under this clause. This contention is full of substance and was conceded by Akram C. J. in the case of Haji Muhammad Jayan and others v. Raju Paramanick and others 53 C W N I D R

61. Mr. Das, however, contends, though feebly, that the order passed under section 26F of the Bengal Tenancy Act allowing an application for pre emption should be regarded as a decree inasmuch as it gives a final decision between the transferor and the pre‑emptor. The scheme of section 26F does not seem to me to permit this view. It appears to me that it was not contemplated that an order passed under this section should be regarded as a decree. Subsection 10 of section 26F provides for an appeal from an order under this section. Now, if an order were to be regarded as decree it would be appealable under section 96 of the Code of Civil Procedure and there would be no necessity of making any further provision for an appeal from an order under this section as has been made in subsection 10 of this section. The appeal to the District Judge was not competent. The rule is accordingly made absolute. The parties will bear their own costs. A. H. Rule made absolute.