Koilash Mondol and another vs Nabadwip Chandra Kar and others

Petheram, C.J.—We think this Rule must be made absolute. The Rule was obtained to revise an order of the Munsif in which he professes to be acting under sec. 623 of the Code of Civil Procedure, and under the provisions of that section, he set aside the judgment of his predecessor and reinstated the case on his file. The suit was a suit, which, after one or two adjournments, came on for hearing on the 24th December 1895. When the matter came on for hearing, the parties asked for a little time in order that they might arrange terms of compromise. The Munsif said they might come back at the end of two hours, after the expiry of two hours no body appeared and the Munsif did what I think he had a perfect right to do, indeed what I think it was his duty to do, he called on the case and dismissed the suit. That was a perfectly regular and proper judgment. If the Plaintiff was injured by that judgment, his proper course was to take action under sec. 99 of the Code.

Under that section he might have shown that for some sufficient reason he was not able to be present and might have had his case reinstated if he applied within thirty days. He failed to do that. Long after the expiration of thirty days he made an application to the then Munsif, but it did not come on for hearing until a new Munsif was appointed. The new Munsif thought that this was a case of great hardship, and he admitted the matter to review and reinstated the case for no reason, as far as we can see, except that the Plaintiff had allowed his right under sec. 99 of the Code, to have his case restored to be barred. Now, whatever the rights of parties under sec. 623 of the Code may be, they do not include cases where a person by his own negligence has lost his rights under sec. 99, and this is exactly the case here. The only ground for the application for review, was that the Plaintiff in not making his application within thirty days, has lost his legitimate rights under sec. 99. Under the review section of the Code the Munsif had no jurisdiction to reinstate the case.

The result is that the Rule must be made absolute and we set aside the order complained of with costs.

Rampini, J.

I agree.