Das Gupta, J. - (1.) This Rule came up for hearing before Chunder, J., who has referred it to a Division Bench. The Petitioner was the Defendant in a suit for ejectment instituted under Section 16 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. The suit was decreed ex parte on November 4, 1952. He filed an application purporting to be under Order IX, Rule 13 of the Code of Civil Procedure. The learned Judge was of opinion that "summons was served and "that the Defendant was aware of the ejectment suit", and that "the application is hopelessly barred by limitation". Accordingly, he dismissed the Defendant-Petitioner's application. Against that decision the Petitioner preferred an appeal'. The learned Judges who heard the appeal were of opinion that court was not competent to hear any appeal excepting that which fell under Section 32 of the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950 and, accordingly, they dismissed the appeal.
(2.) In Sahadat Khan v. Mahammad Hossain (1953) 57 C.W.N. 948 , Das, J., held that Order IX, Rule 13 of the Code of Civil Procedure was applicable to suits filed under Section 16 of the Rent Control Act of 1950, that an order rejecting such an application was appealable under Section 104(1)(i) read with Order XLIII, Rule 1, Clause (d) of the Code and that in view of the provisions of Section 106 of the Code, the appeal would lie to the court Specified in Section 32(6) of the Rent Control Act of 1950.
(3.) Chunder, J., however, felt that proper weight had not been given to the provisions in Section 47(2)(g) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, and that it was desirable that the question whether any appeal would lie against such an order as was passed by the Judge on the application purporting to be under Order IX, Rule 13 of the Code of Civil Procedure, that the ex parte decree be set aside.;