KAMAL CHANDRA DUTTA ETC. Vs. RAM CHANDRA GOALA AND ANR.

JUDGEMENT

(1.) THESE two Miscellaneous Second Appeals which arise out of the same impugned order, are directed against the order of the learned Assistant District Judge No. 1, Gauhati, made in his appellate jurisdiction against an order passed by the learned Munsiff No. 2 of Gauhati on an application under Section 144 of the Civil P. C. The points of law involved are also common. So this order of mine will dispose of both of them.

(2.) RADHA Mohan Goenka was the plaintiff in the original suit. He brought the suit No. 61 of 1971 against the sole defendant, Ram Chandra Goala, for declaration of title and recovery of khas possession of the suit land in the court of Munsiff No. 1 at Gauhati. The suit was subsequently transferred to the Court of the Munsiff No. 2, Gauhati, and it was numbered as Title Suit No. 15 of 1971. The plaintiff obtained an ex parte decree against the defendant in the suit on 13 -11 -1971. The plaintiff -decree -holder executed the decree and evicted the defendant on 3 -1 -1973 by demolishing his houses standing on the suit land. On 6 -1 -1973 the defendant filed an application under Order 9, Rule 13 of the Code of Civil Procedure and the application was registered as Misc. Case No. 2 of 1973 in the court of the Munsiff No. 1, later on re -numbered as Misc. Case No. 20 of 1974 in the court of the Munsiff No. 2. In that application it was alleged by the defendant that no summons was served on him, he was kept in complete darkness about the suit and that the decree had been obtained by fraud. The plaintiff filed objection. After hearing the parties the learned Munsiff rejected the application under Section 144 of the Civil P. C. but on appeal the learned Assistant District Judge set aside the order of the learned Munsiff and allowed the application under Section 144. Hence this Second Appeal.

(3.) MR . P. Choudhury, learned counsel appearing for the appellants submits that the application under Section 144 of the Civil P. C. was incompetent. His second submission is that in any case appellant Kamal Chandra Dutta was a bona fide purchaser of the property for a valuable consideration and as such no relief under Section 144, Civil P. C. can be granted against him.