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Civil Revision No. 215 of 1942, decided on 901 August, 1919.

O. XLVII, rule 1‑Appli cation for setting aside sale under section 174 (3), Bengal Tenancy Act (VIII of 1885) allowed by Court in condition of depositing costs and dues by certain date‑Order passed in ab sence of Petitioner and counsel‑Application fur extension of time and review rejected as incompetent‑money deposited by Peti tioner after fired date‑Held Court was competent to grant equitable relief against forfeiture.

An application under section 174, clause (3), Bengal Tenancy Act by the judgment‑debtor 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 to 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 far review were rejected by the. Court, but the judgment‑debtor made the deposit pending disposal of ,his review application.

Held, that the Court in a case of this nature has authority to giant 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 tine within which to make the payment.

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

Ch. Ashraf‑ud-din, for Petitioner.

Bhagirath Chandra Das for Opposite Party.

On an application under section 174, clause (3). Bengal Tenancy Act by the judgment‑debtor. Miscellaneous case No. 155 of 1946 came to be started. This was disposed of on 22nd April 1947, when the following order was passed:‑--

" Miscellaneous case be allowed on contest with cost and pleader's fee at Rs. on the condition of petitioner's depositing decretal dues with cost of execution by 30th April 1947. On the petitioner's making the deposit, the sale will beset aside. If the petitioner fails to make the deposit within the time allowed, Miscellaneous case shall stand dismissed and tire sale will remain confirmed."

On the said date, however, namely 30th April 1947, an application was filed by the petitioner for extension of me. This application, was rejected on 1st May 1947, on the ground that the Court had no jurisdiction to extend the time fixed for payment by its order, dated 22nd April 1947 Another application for review under Order XLVII, rule 1, Civil Procedure Code was thereupon made on 10th May 1947. This application also was rejected on 27th September 1947, on the ground that the application under section 174 (3) had been finally disposed of already and the appli cation under order XLVII, Civil Procedure Code, seas, therefore, incompetent. In that view of the matter, the other points in respect of the said application and the merits thereof were not gone into. It is against this order that the judgment‑debtor, the application for review obtained the present rule.

In the petition here, upon which the Rule was issued, it has been stated that the order, dated 22nd April 1947, was passed in the Chamber without the knowledge of the petitioner and without reference to his lawyer that the petitioner was a poor cultivator and lived nearly 35 miles away from the town of Comilla, wherein the Court was situated. that the petitioner hate no intimation by the pleader of the order passed by the Court ; that the petitioner bad deposited the amount in the treasury on 12th May 1947, where the said amount was still lying. It is now urged by the learned Advocate for the petitioner that the view taken by the Court below that the application for review of the order, dated 22nd April 1947. was incompetent and could not be entertained cannot be supported, and the decisions in the cases of Muhammad Asrafali v. Nabijan Bibi A. I. R. 1939 Cal. 581, and Girish Chandra Das v. Annadamani A. I. R. 1939 Cal. 309, are relied upon in support.

It seems to me that the contention put forward by the learned Advocate for the petitioner is well‑founded and 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 in my opinion, not beyond the scope of the application of the principle of equitable relies. In my view 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. I accordingly set aside the decision of the learned Munsif and send back the case to be disposed of on the merits in accordance with law.

The rule is made absolute with costs. Hearing fee one gold mohur.

Rule made absolute.

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