- (1.) This is an application in revision against the order of the Subordinate Judge, second court, Midnapore, dated June 26, 1952, by which he refused to entertain an application filed by the Petitioner under Section 151 of the Code of Civil Procedure for vacating a previous order made by the same court on February 8, 1952. The facts which are material for purposes of this Rule may briefly be stated as follows: One Haji Tahidali, the brother of the Petitioner and husband of opposite party No. 2, instituted a title suit for cancellation of three Kabalas alleged to have been executed by him. Opposite party No. 1, who is the brother of opposite party No. 2, contested the aforesaid suit denying the allegations contained in the plaint. On November 6, 1951, an application was filed in court alleging that Haji Tahidali did not desire to prosecute the suit and that the suit might be dismissed for non-prosecution. This application came up for hearing on December 14, 1951, on which date an affidavit was filed on behalf of the Plaintiff, Haji Tahidali, averring that he did not instruct anybody to file a petition expressing his intention not to proceed with the suit. Upon these materials the Subordinate Judge, second court, passed an order on December 14, 1951, to the effect that the application alleged to have been filed by the Plaintiff expressing a desire not to prosecute the suit should be rejected and that the suit should be heard on its merits, and February 8, 1952, was fixed by the court for settling the date for peremptory hearing.
(2.) On February 8, 1952, a petition purporting to bear the thumb impressions of the Plaintiff Haji Tahidali was filed in court alleging that the matters in dispute between the parties had been settled out of court and as such the Plaintiff did not want to proceed with the suit. The suit might accordingly be dismissed without costs for non-prosecution. In this application there was a further allegation that the Plaintiff Haji Tahidali had authorised his wife Sm. Hamidannessa Bibi, opposite party No. 2, to file a fresh vokalatnama and to engage a new lawyer. This application was heard by the court on February 8, 1952. An affidavit was filed by the Plaintiff's wife Sm. Hamidannessa Bibi, to the effect that the Plaintiff did not want to proceed with the suit and that he had deputed her to file a fresh vokalatnama. On a consideration of the materials on the record, the Subordinate Judge dismissed the suit for non-prosecution without any costs to the Defendants.
(3.) On February 16, 1952, the Petitioner before us filed an application for vacating the order, dated February 8, 1952, alleging that Haji Tahidali died on February 8, 1952, and that the thumb impressions upon the application filed on February 8, 1952, were not his and that even if those thumb impressions be found to be his, they were obtained at a time when Haji Tahidali was unconscious. The Petitioner alleged in this application that he was a brother of the deceased Plaintiff and as such one of his heirs. He filed the application for vacating the order under Section 151 of the Code of Civil Procedure.;