P.N. Mookerjee, J.@mdashThis Rule is directed against an order of the learned Munsif, refusing the Petitioner''s application u/s 151 of the Code of Civil Procedure, simply upon the ground that, as an appeal lay from the order, in respect of which the application u/s 151 was moved, that section had no application to the case.
2. The order in question was an order dismissing an application under Order 21, Rule 90 of the CPC for default. As stated above, the learned Munsif, upon the view that the said order was appealable, refused to exercise his powers u/s 151 of the CPC on the sole ground that, as an appeal lay from that order, that section had no application.
3. We are wholly unable to agree with the learned Munsif in his above view of the law. It is not the law that the mere existence of an alternative remedy, either by way of appeal or otherwise, would be a bar to the application u/s 151 of the Code. That, of course, may be a matter to be taken into consideration by the Court, when it seeks to exercise its discretion under its inherent jurisdiction under the section. The existence of an alternative remedy, however, be it appeal or otherwise, would not by itself be an absolute bar to the exercise of powers u/s 151 of the Code.
4. Indeed, the decision of this Court, reported in Sibani Rani Dutta v. Balai Chandra Dutta (1964) 68 C.W.N. 1064 which may be said to be the strongest authority in support of the learned Munsif''s point of view, itself expressly recognizes and mentions a number of exceptional circumstances, under which Section 151 of the Code may be applied, notwithstanding existence of an alternative remedy by way of appeal etc. and the said list of exceptional circumstances was certainly not intended to be exhaustive. Upon a close reading of the said decision, it seems to us that the learned Judges (Banerjee and D. Basu, JJ.) never intended to limit the exercise of powers u/s 151 of the Code, even where the order in question was appealable, only to the exceptional circumstances, mentioned in their judgment--far less to lay down any broad proposition to the effect that, in a case where an appeal lay, no application u/s 151 of the Code would be maintainable.
5. Indeed, the difficulty and undesirability of a restricted view of the section, as suggested by the learned Munsif, is quite apparent even from the above decision of this Court and its earlier decision in Gnanendra Mohan Bhadury v. Prafullananda Goswami (1927) 32 C.W.N. 101, noted therein towards its concluding paragraph, as they unmistakably show that in appeals in cases, like the present remands, would normally be inevitable, leading to obviously prolongation of litigations, which it is the primary object and desire of every sound judicial system and administration to avoid.
6. We would, accordingly, make this Rule absolute, set aside the impugned order of the learned Munsif and send the matter back to him so that the Petitioner''s application u/s 151 of the Code may be heard out and disposed of by him on the merits in accordance with law.
7. There will be no order for costs in this Court.
A.N. Chakrabarti, J.
8. I agree.
