Akram, C. J.
ABDUL GHANI – Petitioner
KHESTA MOHAN ROY and others – Respondent

Civil Revision No. 215 of 1947, decided on 9th August, 1949.

Civil Procedure Code (V of 1908), O. XLV II rule 1 – Application for setting aside sale under section 174 (3), Bengal Tenancy Act (VIII of 1885) allowed by Court on condition of depositing costs and dues by certain date – Order passed in absence of petitioner and counsel – Applications for extension of time and review rejected as incompetent – Money deposited by petitioner after fixed date – Held Court was competent to grant equitable relief against forfeiture.

An application under section 174, clause (3), Bengal Tenancy Act by the judgment – debater was allowed on condition of petitioner’s depositing decretal dues etc. by a certain date, failure to deposit which was to result in dismissal of the application. This order was passed in the Chamber without the knowledge of the petitioner and without reference to his lawyer; the petitioner was a poor cultivator and lived nearly 35 miles away, the petitioner had no intimation by the pleader of the order passed by the Court. Application for extension of time, as well as, one for review were rejected by the Court, but the judgment-debater made the deposit pending disposal of his review application.

Held, that the Court in a case of this nature has authority to grant relief against forfeiture upon a proper application being made to it. The right of forfeiture in such cases is not beyond the scope of the application of the principle of equitable reliefs. The application under order XLVII, rule 1, Civil Procedure Code, is not, therefore, incompetent and the Court ought to have considered whether on the merits, the application should have been allowed and the petitioner given a reasonable time within which to make the payment. [p. 34].

A. I. R. 1939 Cal. 581 ; A. I. R. 1939 Cal. 309.

Ch. Ashraf-ud-Din, for Petitioner.
Bhagirath Chandra Das, for Opposite Party.