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D.B. Manke Vs. B. Walwekar, Secretary, Sew Sports Club - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported inAIR1923Bom386; 80Ind.Cas.182
AppellantD.B. Manke
RespondentB. Walwekar, Secretary, Sew Sports Club
Excerpt:
civil procedure code (act v of 1908), section 161, order ix rule 9 - suit dismissed for default--restoration, application for--second default--application, whether can be restored--court, inherent power of. - - that was clearly time-barred, the court considered that it was an application to restore the application previously made under order ix, rule 9. considering the application as restored, it passed an order against the plaintiff for a now trial......the suit at the hearing. the opponent then filed an application for setting aside of the ex parte decree and notice was issued to the plaintiff and the day fixed for hearing was 10th april 1922. that notice was issued under order ix, rule 9. the notice was struck off for want of prosecution. again the opponent presented an application for setting aside the ex-parte decree. that was clearly time-barred, the court considered that it was an application to restore the application previously made under order ix, rule 9. considering the application as restored, it passed an order against the plaintiff for a now trial. the application is made to us to revise that order as being without jurisdiction. it cannot be said that there is any rule in the code of civil procedure that enables the.....
Judgment:

1. The plaintiff filed a suit No. 283 of 1922 in the Small Causes Court, Bombay, to recover wages from the Opponent. The suit was decreed ex parte because although the Opponent engaged a pleader he did not attempt to contest the suit at the hearing. The Opponent then filed an application for setting aside of the ex parte decree and notice was issued to the plaintiff and the day fixed for hearing was 10th April 1922. That notice was issued under Order IX, Rule 9. The notice was struck off for want of prosecution. Again the Opponent presented an application for setting aside the ex-parte decree. That was clearly time-barred, the Court considered that it was an application to restore the application previously made under Order IX, Rule 9. Considering the application as restored, it passed an order against the plaintiff for a now trial. The application is made to us to revise that order as being without jurisdiction. It cannot be said that there is any rule in the Code of Civil Procedure that enables the Court to restore an application made under Order IX, Rule 9, which has been dismissed for want of prosecution. It is urged upon us that the Court has inherent powers to make orders within the provisions of Section 151 and that this was an order made accordingly. There is no reference made in the decision of the Court that the order was made under Section 151. It is quite clear that if that Section had bean considered, the order under revision could not possibly have been made under it. That Section gives the Court power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. The plaintiff has got a decree and the defendant had every opportunity of appearing in Court at the time of hearing and also when notices were issued by him against the plaintiff for a new trial. It cannot be said, therefore, that in any circumstance it is necessary for the ends of justice that be should have yet another opportunity of harassing the successful party. Therefore the rule is made absolute with costs.


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