Dhaninder Das vs Bakhshi Harihar Prasad Singh

Roe, J.—The facts, of this case are briefly that on the 8th January 1917 the learned Subordinate Judge of Shahabad made an order for delivery of possession of property purchased in execution of a decree. On the 26th January 1917 the judgment-debtor applied to have that order set aside on the ground that the application for delivery of possession was on the face of it barred by limitation.

The matter was taken up on the 6th February 1''917, and the learned Subordinate Judge, finding that the order for delivery was barred by limitation, ordered it to be cancelled. His order runs: "Objection is allowed and the delivery of possession is cancelled."

An appeal has been laid to this Court. But that appeal is obviously incompetent, for it is" now settled law for this province that proceedings for delivery of possession are not proceedings in connection with the execution of a decree. We are asked, however, u/s 115 to set aside the learned Subordinate Judge''s order on the ground that it is made without jurisdiction. It is to be noted that the whole of the proceedings, both as conceived '' by the judgment debtor and by the learned Subordinate Judge, were taken u/s 47 of the Code of Civil Procedure, a section which had nothing whatever to do with the matter: but it is urged before us that the Court had jurisdiction under Order XLVII to review its own order.

For the applicant reliance is placed on Sasibhushan Mookerjee v. Radhanath Bose 25 Ind. Cas. 267 : 19 C.W.N. 835 : 20 C.L.J. 433. It was never suggested in that case that the Munsif had no power to review his own order erroneously made delivering possession. All that was said was that he had no power to review an order of his predecessor. It is q]ear from the decision in Hadjee Abdoollah Reosut Hossein v. Hadjee Abdoollah 2 C. 131 : 3 I.A. 221 : 26 W.R. 50 : 1 Ind. Dec. (N.S.) 380 (P.C.) that this is a type of case in which a Court should review its own order. Through no fault of the judgment-debtor the important fact was kept from the knowledge of the learned Subordinate Judge that this application was time barred. On the fact being brought to his notice by the judgment-debtor, the learned Subordinate Judge was, in our opinion, right in correcting his order and making it in accordance with law.

We, therefore, decline to interfere. The appeal is dismissed with ''costs in accordance with the scale laid down. We make no order as to costs upon the application for revision.

Imam, J.

I agree