The main legal point established in the judgment is the court's authority to set aside an ex parte order obtained without notice to the affected party, as well as the court's jurisdiction to review its own orders in case of misrepresentation of facts or under special circumstances.

JUDGMENT

P.B. Mukharji, J. - This is a summons taken out by the Applicant, Ashit Kumar Ghosh, to set aside the ex parte order dated March 28, 1945, alternatively to set aside those provisions in the said ex parte order which are not authorised by the terms of the will of the testator Akshay Kumar Ghosh and for necessary directions.

2. On March 28, 1945, Pravash Chandra Mallik and Dulal Chand Aich, as executors and trustees of the will of Akshay Kumar Ghosh, made an application. That application was made in the Testamentary and Intestate Jurisdiction of this Court u/s 302 of the Indian Succession Act and under the Indian Trusts Act and the Trustees and Mortgagees Powers Act. An order was obtained on the same day on such application. The application was made ex parte without notice to the present Applicant who is the sole residuary legatee under the will and the only person who is the beneficial owner of the estate left by the said will.

3. The terms of the order, dated March 28, 1945, are as follows:

(i) It is ordered that the said executors be at liberty to maintain the persons mentioned in para. 22 of the said petition and to incur expenses on the heads mentioned in Parts III and IV of the said Ex. A to the said petition in the same way as the said executors have been doing unless the adopted son Ashit Kumar Ghosh obtains direction to the contrary from the Court after attaining majority ;

(ii) And it is further ordered that the said executors be at liberty to pay to the said Pravash Chandra Mallik as the Chief Manager of the estate of the said deceased a salary of Rs. 1,000 per month with effect from January 1, 1945, rising to Rs. 1,500 by increment of Rs. 50 every two years unless the said adopted son Ashit Kumar Ghosh obtains directions to the contrary from the Court after attaining majority.

4. The rest of the order relates to liberty granted to the executors to purchase the property at Metiabruz, as mentioned in para. 41 of the said petition at a price not exceeding Rs. 25,000 and the executors were further directed to retain and pay out of the estate of the said deceased the costs of that application as between attorney and client including fees actually paid to counsel to be certified by two attorneys of this Court.

5. The Applicant has attacked the two main provisions of the order dated March 28, 1945, giving liberty to the executors to incur expenses for maintenance of persons mentioned and the payment of increased salary to Pravash Chandra Mallik.

6. Under the will of the said Akshay Kumar Ghosh deceased, Prorash Chandra Mallik combines the office of both an executor to the estate and the Chief Manager to the estate. Probate was obtained by the Respondents on March 10, 1932, from this Court.

7. Mr. Niren De appearing on behalf of the Respondents has contended that the application is not maintainable. In support of this argument he has urged that an ex parte order can only be set aside if there is fraud on the processes of the court or if the order is beyond the jurisdiction of the court. He has submitted that the order dated March 28, 1945, was neither in fraud on the processes of the court nor beyond its jurisdiction. He has relied on the observations of Greaves J. in Basanta Kumar Das v. Kusum Kumari Dasi ILR (1916) Cal. 28, 33.

8. That case, however, was (i) not a case of an ex parte order, (ii) nor a case u/s 302, Succession Act. It will, therefore, be necessary here in this case to consider whether these factors make any difference. Greaves J. says that there was no procedure in the CPC by which one Judge can sit in appeal over the order of another in the case that he was , dealing. Mr. Sanyal, for the Applicant, does not contest that proposition. He says, first, that CPC preserves inherent jurisdiction to recall an ex parte order and secondly, draws my attention to p. 34 of that report where Greaves J. says that court has inherent jurisdiction to review its own orders in case of "fraud or under special circumstances". Mr