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1991 DIGILAW 182 (GAU)

Anu Barua v. Podumi Barman @ Barmoni Burhi

1991-11-08

B.P.SARAF

body1991
This revision petition arises out of the judgment and order dated 24.7.91 passed by the Munsiff No. 2, Guwahati in Misc. (J) Case No. 20 of 1988 (arising out of Title Suit No. 94 of 1986) on an application under Order 9 Rule 13 of the Civil Procedure Code (CPC). By the said order the ex parte decree passed by the Munsiff No. 1 on 5.1.87 in Title Suit No. 94 of 1986 was set aside and the suit was restored to original file. I have heard Mr. J. N. Sarma, learned counsel for the petitioner. The sole contention of Mr. Sarma is that the ex parte decree in this case having been passed by the Munsiff No. 1, the application under Order 9 Rule 13 would lie only before the Munsiff No. 1 and he was the only competent Court to pass an order thereon. In view of the language of Order 9 Rule 13 of the CPC, the Munsiff No.2 who passed the impugned order had no jurisdiction to pass the order on an application under Order 9 Rule 13 of the CPC in such a case. I have considered the submission of Mr. Sarma. I have also perused the language of Order 9 Rule 13 of the CPC which provides that in any case in which a decree is passed ex parte against a defendant, he may apply "to the Court by which the decree was passed" for an order to set it aside; and if he satisfies the Court inter alia that the summons was not duly served etc., the Court shall make an order setting aside the decree as against him. The question for determination is what is the meaning of the expression "the Court by which the decree was passed". In the instant case the admitted position is that the ex parte decree was passed by the Munsiff No. 1. On an application being filed under Order 9 Rule 13 CPC the case came up for orders before the Munsiff No.2 who passed the impugned order at that stage was transferred to him by the District Judge. The controversy is whether the Court of Munsiff No. 2 falls within the expression "the Court by which the decree was passed". The answer will depend upon the construction of the expression "the Court". Will it mean the same class of Court or the same Judge ? The controversy is whether the Court of Munsiff No. 2 falls within the expression "the Court by which the decree was passed". The answer will depend upon the construction of the expression "the Court". Will it mean the same class of Court or the same Judge ? Section 3 of the Bengal. Agra and Assam Civil Courts Act, 1887 specifies the different classes of Courts. It reads as under : "3. Classes of Courts. There shall be the following classes of Civil Courts under this Act, namely : (1) the Court of the District Judge; (2) the Court of the Additional Judge; (3) the Court of the Assistant District Judge; and (4) the Court of the Munsiff." From a bare reading of this section, it is clear that all Courts of Munsiff form one class. Different Munsiff donot form different classes of Courts. It is also the admitted position that "the pecuniary jurisdiction of all the Munsiffs is the same that is Rs. 10,000/-. There is also no controversy at the Bar that cases can be transferred from one Munsiff to the other. It is also not disputed that this case was transferred by the learned District Judge from Munsiff No. 1 to Munsiff No. 2. Under the circumstances the only controversy that has been raised is whether the Munsiff No. 1 alone can decide the application under Order 9 Rule 13 or it can be decided by any Munsiff. I have carefully considered the submission. I am of the opinion that the words "the Court" in Order 9 Rule 13 of the CPC means the Court of the same class and not the same Judge. A Court of a class other than the one which passed the ex parte decree cannot decide the application under Order 9 Rule 13. In 'this connection, it may also be worthwhile to refer to section 114 of the Civil Procedure Code dealing with the power of review which has also used a similar expression. Here also a person aggrieved may apply for a review of judgment to "the Court which passed the decree or made the order." (emphasis supplied). It is submitted that a review petition is to be heard by the same Judge who passed the decree or order. If a decree or order had been passed by Munsiff No. 1, it cannot be reviewed by Munsiff No. 2. It is submitted that a review petition is to be heard by the same Judge who passed the decree or order. If a decree or order had been passed by Munsiff No. 1, it cannot be reviewed by Munsiff No. 2. It is contended that the same analogy should apply to an application under Order 9 Rule 13. I have considered the submission but find it difficult to accept the same as according to me in case of review it is not so on account of the expression "the Court" used in section 114 of the CPC but because of the specific provision contained in Rule 5 of Order 47 of the CPC to the effect that an application for review, except in the circumstances specified therein, should be heard by the same Judge or judges or any of them who passed the decree or made the order and no other Judge or Judges. In my opinion, it is because of this specific provision in Rule 5 of Order 47 of the CPC that an application for review is ordinarily heard by the same Judge of the Court but in Order 9 Rule 13 there is no such requirement. It speaks of "the court” and not the same "Judge". Section 3 of the Bengal, Agra and Assam Civil Courts Act, 1887, set out above, has categorised all Munsiffs in on; class. Court of Munsiff will mean all the Munsiffs having territorial and pecuniary jurisdiction in the matter. In that view of the matter, I do not find any force in the objection of the learned counsel for the petitioner in regard to the jurisdiction of the learned Munsiff No. 2 to decide the application under Order 9 Rule 13 of the Civil Procedure Code against an ex partc decree passed by the Munsiff No.l. This application has therefore, no merits and the same is dismissed at the admission stage. The records of the case may be sent to the Court below immediately.