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Deo Narayan Goala, (Deceased by L.R.) and ors. Vs. Jagadish Pandit - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Revn. No. 158 of 1980
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 21, Rules 105 and 106
AppellantDeo Narayan Goala, (Deceased by L.R.) and ors.
RespondentJagadish Pandit
Appellant AdvocateM.A. Laskar, Adv.
Respondent AdvocateN.M. Lahiri and B.M. Mahanta, Advs.
DispositionRevision dismissed
Prior history
T.S. Misra, C.J.
1. A title suit filed by the decree-holder opposite party against the judgment-debtor petitioner was decreed on 4th March, 1968. That decree was put under execution. It appears that in Execution Case No. 14 of 1978 the judgment-debtor filed a petition No. 49/11 praying for the stay of the execution till the harvesting of the crop was done. The decree-holder opposed that petition of the judgment-debtor. The learned Munsiff executing the decree rejected the application of the ju
Excerpt:
- - rule 106, empowers the executing court to recall the order of dismissal passed ex parte and it provides that the court may set aside the order passed either under sub-clause (1) of rule 105 or of sub-clause (2) of rule 105, if it is satisfied that there was sufficient cause for the non-appearance when the application is called on for hearing. it is, however, plain that in such a case a very good and sufficient cause will have to be established for getting the execution case restored. ' 7. it is by now well established that inherent power of the court cannot override the express provisions of the law. the petitioners have thus failed to make out a case warranting interference under section 115 of the code of civil procedure......no. 49/11 praying for the stay of the execution till the harvesting of the crop was done. the decree-holder opposed that petition of the judgment-debtor. the learned munsiff executing the decree rejected the application of the judgment-debtor. he also rejected the objection of the decree-holder on the ground that the petition filed by the judgment-debtor had become redundant. the learned munsiff also passed a further order in the following terms :'d. h. took no other steps for proceeding with execution. hence the case is dismissed for default.'2. the above order was passed by the learned munsiff on 11th july, 1980. the decree-holder filed an application no. 92/14 before the learned munsiff praying that the said order dated 11th july, 1980 be set aside. the judgment-debtor filed a,.....
Judgment:

T.S. Misra, C.J.

1. A title suit filed by the decree-holder opposite party against the judgment-debtor petitioner was decreed on 4th March, 1968. That decree was put under execution. It appears that in Execution Case No. 14 of 1978 the judgment-debtor filed a petition No. 49/11 praying for the stay of the execution till the harvesting of the crop was done. The decree-holder opposed that petition of the judgment-debtor. The learned Munsiff executing the decree rejected the application of the judgment-debtor. He also rejected the objection of the decree-holder on the ground that the petition filed by the judgment-debtor had become redundant. The learned Munsiff also passed a further order in the following terms :

'D. H. took no other steps for proceeding with execution. Hence the case is dismissed for default.'

2. The above order was passed by the learned Munsiff on 11th July, 1980. The decree-holder filed an application No. 92/14 before the learned Munsiff praying that the said order dated 11th July, 1980 be set aside. The judgment-debtor filed a, petition No. 94/2 contesting the said application of the decree-holder. The learned Munsiff having found that the grounds stated in the petition of the decree-holder were quite satisfactory, allowed his application and rejected the petition of the judgment-debtor by his order dated 14th July, 1980 and fixed 24th July, 1980 for taking steps by the decree-holder. The judgment-debtor feeling aggrieved has filed the instant petition under Section 115 of the Code of Civil Procedure, impugning the validity of the said order dated 14th July, 1980.

3. For the revisionist it was urged that the decree-holder had filed the application for setting aside the order dated 11th July 1980 under Section 151, Code of Civil Procedure which, in view of the provisions of Rules 105 and 106 of Order 21, Code of Civil Procedure, was not maintainable, inasmuch as, the court below could not exercise its inherent jurisdiction under Section 151, Code of Civil Procedure when there was a specific provision to deal with the matter under Rule 106 of Order 21, Code of Civil Procedure. The learned counsel for the decree-holder opposite party submitted that as the period of 12 years calculated from 4th March, 1968, had already expired long before 11th July, 1980, when the execution application was rejected by the trial court on the ground of non-prosecution, the court below had inherent jurisdiction to recall its order and restore the execution petition with a view to meet the ends of justice.

4. In order to appreciate the rival contentions of the parties it would be appropriate to extract hereinbelow Rule 105 and 106 of Order 21, Code of Civil Procedure.

'105. Hearing of application.-- (1) The Court, before which an application under any of the foregoing rules of this Order is pending, may fix a day for the hearing of the application.

(2) Where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing, the court may make an order that the application be dismissed

(3) Where the applicant appears and the opposite party to whom the notice has been issued by the court does not appear, the court may hear the application ex parte and pass such order as it thinks fit.

Explanation.-- An application referred to in Sub-rule (1) includes a claim or objection made under Rule 58.

106. Setting aside orders passed ex parte, etc. -- (1) The applicant, against whom an order is made under Sub-rule (2) of Rule 105 or the opposite party against whom an order is passed ex parte under Sub-rule (3) of that rule or under Sub-rule (1) of Rule 23, may apply to the court to set aside the order, and if he satisfies the court that there was sufficient cause for his non-appearance when the application was called on for hearing, the court shall set aside the order on such terms as to costs or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application.

(2) No order shall be made on an application under Sub-rule (1) unless notice of the application has been served on the other party.

(3) An application under Sub-rule (1) shall be made within thirty days from the date of the order, or where, in the case of an ex parte order, the notice was not duly served, within thirty days from the date when the applicant had knowledge of the order.'

5. These two Rules were inserted by the Code of Civil Procedure Amendment Act, 1976 and were brought into force with effect from 1st February, 1977. Rule 105 deals with the hearing of an execution application. Sub-clause (1) of Rule 105 requires the court to fix a date for the hearing of an execution application. Sub-clause (2) of this Rule provides that if on the date fixed for hearing of the execution application or any application arising out of the execution application or on any other date to which the hearing may be adjourned, the applicant does not appear when the case is called on for hearing, the court may dismiss that application. Similarly if the other party to whom the notice has been served does not appear, the court may proceed to hear the application ex parte and pass such orders as it thinks fit and proper. Rule 106, empowers the executing court to recall the order of dismissal passed ex parte and it provides that the court may set aside the order passed either under Sub-clause (1) of Rule 105 or of Sub-clause (2) of Rule 105, if it is satisfied that there was sufficient cause for the non-appearance when the application is called on for hearing. Rule 105 also covers the execution application. The court may fix a date of hearing of an execution application if any objection is filed against the same and if on the date of hearing of the application, the decree-holder is not present, the application may be rejected. Similarly, if the judgment-debtor is not present at the time of hearing of the execution application, the hearing may be done ex parte and suitable orders may be passed in the case after hearing the decree-holder. Rule 105 however does not deal with the situation when an execution application is rejected on account of not taking the requisite steps in the case. It is quite plain from Sub-clause (1) of Rule 105 that the court may fix a date for the hearing of the application. But before an application is set down for hearing, it should have in fact, ripened for the hearing. In other words, the judgment-debtor should have the information that an application has been moved against him and he may show cause against the same. In order to serve notices on the judgment-debtor certain steps are to be taken. If the decree-holder does not take the requisite steps to serve notice on the judgment-debtor, the execution application may be rejected on account of non-prosecution. But that order of rejection will not be covered by Rule 105, Code of Civil Procedure; because, the date was not fixed for hearing the application but was fixed for taking requisite steps in the case. This distinction is also made out in the provisions of Order 9 of the Code of Civil Procedure. I have referred to the provisions of Order 9 not with a view to say that those provisions apply to the execution case but I have just mentioned them by way of an illustration. It cannot, therefore, be said that Rule 105 covers all the situations and if any application has to be made for setting aside the ex parte order, it should be only under Rule 106 of Order 21. In fact Rule 106 comes into play when an application was fixed for hearing and the applicant was absent at the time of the hearing and the application was therefore rejected. In the case in hand, the learned Munsiff rejected the execution application on the ground that the decree-holder took no other steps for proceeding with the execution. Quite obviously, the execution application was not fixed on 11th July 1980 for its hearing. The petition No. 49/11 filed by the judgment debtor was fixed for hearing and that petition was rejected on that day. After rejecting that application, the court below further passed an order dismissing the execution case for default on the ground that the decree-holder took no other steps. This order was obviously not covered by the provisions of Rule 105 of Order 21, Code of Civil Procedure. Hence the provisions of Rule 106 could not be invoked. The decree was passed on 4th March, 1968. The period of 12 years had expired on 4th March, 1968. The execution application was dismissed on 11th July, 1980. In these circumstances, the decree-holder filed an application under Section 151, Code of Civil Procedure for recalling the order of 11th July, 1980 instead of filing a second application for execution.

6. A Division Bench of the Patna High Court in Rani Krishnawati v. Sureshmohan Thakur, AIR 1974 Pat 327 had observed (Para 6) :

'I think in a proper case there should not be any difficulty in taking a view that if an application for fresh execution would be barred under any law of limitation, then a restoration application for restoring the last execution case dismissed for default would be maintainable. An order dismissing an execution case for default is not appealable. The remedy of filing fresh execution being barred, the decree-holder will be left with no other remedy under the Code except of invoking the inherent jurisdiction of the court for restoring the execution case dismissed for default. It is, however, plain that in such a case a very good and sufficient cause will have to be established for getting the execution case restored.'

7. It is by now well established that inherent power of the court cannot override the express provisions of the law. If there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the court or the jurisdiction that may be exercised in relation to a matter the inherent power of the court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates. (See Arjun Singh v. Mohinder Kumar, AIR 1964 SC 993).

8. I have already pointed out above that the provisions of Rules 105 and 106 of Order 21 could not be invoked on the facts and circumstances of the instant case. There is no other express provision in the Code of Civil Procedure dealing with the situation which had arisen in the present case. The trial court had not fixed the execution application for hearing on 11th July, 1980. It had fixed that date for hearing of the petition of the judgment-debtor whereby he wanted the stay of the execution proceedings till the harvesting was done. That application was rejected by the court below as it had become infructuous. The parties were present before the court. If any steps were required to be taken by the decree-holder for proceeding with the execution, the court should have granted time for doing so. Instead, the court below rejected the application in default. The decree-holder therefore applied for setting aside that order. Such an order not being covered by Rule 105 of Order 21, Code of Civil Procedure, the application for setting it aside could not be filed under Rule 106 of Order 21. The inherent power of the Court was, therefore, invoked to set aside that order. The court below having found that there were sufficient grounds for setting aside that order, recalled it and allowed the application of the decree-holder and fixed 24th July, 1980 for taking steps in the case. Such an order could not be said to be capricious or arbitrary. The discretion exercised by the court below in setting aside the order dated 11th July 1980 could not therefore be interfered with. In fact the impugned order was passed in the interest of justice and taking of course the notice of the fact that the alternative remedy to file a fresh execution application had become barred by time. The petitioners have thus failed to make out a case warranting interference under Section 115 of the Code of Civil Procedure.

9. In the result, the revision petition is dismissed with costs which I assess at Rs. 50/-. The Rule is discharged. The interim order dated 21st August, 1980 is vacated


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