Anantanarayana Ayyar, J.
1. A Veeraraghava Raya Chowdhry, as sole plaintiff, filed O. S. No. 3 of 1954 in the Court of the Subordinate Judge, Chittoor. On 18-3-1956, the learned Subordinate Judge dismissed the suit for default. Plaintiff filed I. A. No. 141 of 1956 for setting aside that order of dismissal. Ultimately, I. A. No. 141 of 1958 came up for enquiry on 27-7-1959. On that day, plaintiff was not present in person or by Advocate. The learned Subordinate Judge dismissed I. A. No. 141 of 1956 for default.
The very same day, the Advocate, Sri N. K. Viswanathayya appeared for plaintiff and filed I. A. No. 322 of 1959 praying for restoration of I. A. No. 141 of 1956 to file. That petition was accompanied by an affidavit of the Advocate's clerk stating that the plaintiff had left the vakalat with Sri N. K. Viswanathayya, that the latter could not attend Court in time due to some personal inconvenience and that the clerk himself went to the Court of the District Munsif in the same town of Chittoor to attend to other work and later came to the Sub-Court and found that I. A. No. 141 of 1956 had been dismissed for default. The learned Subordinate Judge held that if the Advocate's clerk had worked elsewhere, that clerk should have left instructions with some colleagne another Advocate's clerk-- that the failure of the Advocate's clerk to do so amounted to negligence and that still he--(the learned Subordinate Judge--) did not think the case suitable one for penalising the plaintiff and, therefore, allowed the petition--I. A. No. 322 of 1959--on payment of Rs. 15 as day costs on or before 12 noon. The petitioner, who was the first defendant in O. S. No. 3 of 1954, fell aggrieved with that order in I. V No. 322 of 1950 and filed this revision petition praying for setting it aside.
2. Sri Sankara Sastry, the learned Advocate for the petitioner, has raised the following contentions:
1. That the negligence of file Vakil's clerk could not be excused simply on the ground that otherwise the plaintiff would have to suffer and would ho penalised.
2. The second application dues not lie in law
3. On merits, the order of the lower Court is not sustainable as there was negligence.
3. Contention No. 2:--In Thakur Prasad v. Fakirullah, (1895) ILR 17 All 106 (PC), two questions arose before the Privy Council re-garding the striking of an execution application from the list of pending cases namely, (1) whether a prior application had been annulled by being struck off or still remained a fresh starting point for limitation in respect of a renewal of the application within three years; and (2) whether or not the High Court has been right in applying the provisions of Section 373 of the C. P. C. of 1882 - (corresponding to Order 2, Rule 2 of the new C. P. C., V of 1908)--on the construction that they had been rendered applicable to petitions for execution by Section 647 in the old C. P. C. of 1882--corresponding to Section 141 of the new C. P. C. V of 1908. Their Lordships stated that they had no hesitation in agreeing with the Subordinate Judge that the new application was not barred by time.
On question No. 2, their Lordships observed as follows; (at p. 111)
'It is not suggested that Section 373 of the C. P. C. would of its own force apply to execution proceedings. The suggestion is that it is applied by force of Section 647. But the whole of Chap. XIX of the Code consisting of 121 sections, is devoted to the procedure in execution, and it would be surprising if the framers of the Code had intended to apply another procedure, mostly suitable, by saying in general terms that the procedure for suit should be followed as far as applicable. Their Lordships think that the proceedings spoken of in Section 647 include original matters in the nature of suits such as proceedings in probates, guardianships, and so forth, and do not include executions.....
And it is clear, both from the Code itself and from the provisions of the Limitation Act of 1877, that the Legislature contemplated that there might be a succession of application for execution.....'
As far as an application of the present type namely, application to set aside an order which had been passed under Order 9, Rule 9, C. P. C.--(hereafter referred to for convenience in this order as second application) is concerned, there is no specific provision in the C. P. C. corresponding to the elaborate provisions contained in the C. P. C. regarding execution petition namely, Order 21 of Act V of 1908 and Chap. XIX of the Act of 1882. There is also no specific provision in the C. P. C. and Limitation Act to show that the Legislature contemplated that there can he a succession of applications for setting aside an order which had been passed under Order 9, Rule 9, C. P. C. In this respect, a second application does not stand on the same footing as an execution petition.
Order 9, Rule 9, C. P. C. provides for an order to set aside dismissal of a suit if plaintiff satisfies the Court that there was sufficient cause for his non-appearance. Similarly, Order 9, Rule 13, C. P. C. provides for setting aside an ex parte decree against a defendant if he satisfies the Court that he was prevented by any sufficient cause from appearing when the suit was called on for hearing. If there can be sufficient cause which can prevent a plaintiff or defendant from attending the Court when a suit is called on for hearing, there can certainly be similar sufficient cause for a plaintiff not appearing when his application under Order 9, Rule 9, C. P. C. is called and for a defendant when his application under Order 9, Rule 13, C. P. C. is called. For, such cause arises out of practical difficulties and exigencies which can arise in ordinary life for any person and in particular arise for a person like a plaintiff or defendant.
If there were no provision like Order 9, Rule 9, C. P. C., the plaintiff would suffer irreparable loss by dismissal of his suit even if he had sufficient cause for his non-appearance, such as contemplated in Order 9, Rule 9, C. P. C. If there were no provision in law for a second application being made by a plaintiff regarding dismissal ot an order (sic) under Order 9, Rule 9, C. P. C. even if he had sufficient cause for non-appearance when his petition under Order 9, Rule 9, C. P. C. was called, he would suffer irreparable loss in spite of the fact that provision under Order 9, Rule 9, C. P. C. existed and the loss to him would be the same as if Order 9, Rule 9, C. P. C. had not existed and as if he had not made any --(first)--application under Order 9, Rule 9, C. P. C. at all, so, it would appear reasonable to infer that the Legislature, which passed the Act V of 1908, intended that such loss should not result to a litigant who, for sufficient cause, could not appear when his application under Order 9, Rule 9, C. P. C. was called and against whom the Court had decided.
4. Several decisions have taken the view that such provision is made available in Section 141, C P. C. by virtue of which, Order 9, itself is applicable to applications under Order 9, Some other decisions have taken the view that it is available under Section 151, C. P. C.. But, no decision cited before me has taken the view that no provision is available at all and that a second application does not lie under any circumstances and that a man, who fails to appear when his application under Order 9, Rule 9, C. P. C. is called, even if he had sufficient cause, has no remedy and is bound to suffer irreparable loss.
5. In Venkatanarasimha Ruo v. Surya-narayana, ATR 1926 Mad 325, an application to restore a suit had been dismissed for default and a subsequent petition was filed to set aside that dismissal and it was allowed by the Court. The only question which arose before the High Court was whether Order 9, applied only to suits or whether, by reason of Section 141, it also applied to applications made under Order 9, itself. The learned Judge observed with reference to the decision in (1895) ILR 17 All 106 (PC) us follows: (at p. 326):
'What was held to be included were original matters in the nature of suits, but this statement is not exhaustive. It is argued that an application under Order 9 is not an original matter in the nature of a suit. It certainly is not a petition in a suit, for the suit is no longer on the file. It relates to a question quite independent of the suit and one which has to be determined on evidence as to matters which would be quite irrelevant to the suit. In this sense, it seems to me to come within the meaning of Privy Council's observations that Section 647 includes original matters in the nature of suits. This view has been taken by the Calcutta High Court in Bepin Behari Shaba v. Abdul Bank, 44 Cal 950: (AIR 1917 Cal 548 (1)); by the Lahore High Court in Abdul Rahman Shah v. Shahana, ILR I Lah 339 : (AIR 1920 Lah 304); and by the Bombay High Court in Lallubhai Vajeram v. Bai Magangavari, (1893) ILR 18 Bom 59...... with all respect, I agree with the rulings 1 have mentioned above and hold that the Court had jurisdiction to entertain this petition...
6. In Kaliakkal v. Palani Goundan, AIR 3926 Mad 412 a question arose before a Division Bench of the Madras High Court consisting of Devadoss and Waller, JJ. as to whether Order 9, Rule 13, C. P. C. applied to execution proceedings. They held that Order 9, Rule 13, C. P. C. did not apply to proceedings under Rules 97 to 101--in Order 21 as they were execution proceedings and not original proceedings.
7. In Salar Beg v. Kotayya, AIR 1926 Mad 654, the question directly arose before the Madras High Court as to where an application under Order 9, Rule 9, C. P. C. was itself dismissed for default, whether another application to restore the first application dismissed for default was competent. The learned Judges held that such a second application was competent approving of the decision in AIR 1926 Mad 325 and a number of other decisions mentioned by them. Waller, I. observed with reference to the earlier decision in AIR 1926 Mad 412 as follows:
'In C. R. P. No. 679 of 1923: AIR 3926 Mad 412, Devadoss, J., and J held that Order 9 does not apply to proceedings in execution of decrees. It is now argued that we stated the proposition too widely; in other words, that all that was laid down in (1895) ILR 17 All 106 (PC) did nut apply to execution petitions. If, however, it does not apply to the petitions themselves, it is difficult to see how it can apply to applications incidental to and arising out of them.
What we are now considering is a different point .... As pointed out by Phillips, J. the proceedings we arc dealing with is not proceedings in a suit; for the suit has been dismissed. I would follow his decision, AIR 1926 Mad 325.
8. Sri Sankara Sastry, the learned Counsel for the petitioner, armies that the decision in AIR 1926 Mad 112 is a direct decision of the Division Bench of the Madras High Court that Order 9 would not apply to applications of the nature of second application and that the second application is not an original proceeding. In that case, the learned Judges were concerned with proceedings under Order 21, Rules 97 to 101, C. P. C. They held that such proceedings were execution proceedings and not original proceedings for the purpose of applying the principle, of the decision in (1895) ILR 17 All 106 (PC) and that, therefore, the latter decision applied. On the other hand, the decision in AIR 1926 Mad 654 related directly to second application as in the present case, and is a direct authority on the point concerned herein. Justice Waller who sal in both the Benches and who wrote the main portion of the judgment in AIR 1926 Mad 654 has brought out the clear distinction between the facts of that ease and the facts of the earlier case in AIR 192Ci Mad 412. This argument of Sankara Sastry is untenable in view of the decision in AIR 1926 Mad 325 and AIR 1926 Mad 651 which are binding on me and which I respectfully follow.
9. Sri Shankara Sastry contends that there is a conflict between the decision of the Division Bench in AIR 1926 Mad 654 and the decision of the earlier Division Bench in AIR 1926 Mad 412 and that to resolve the conflict I should refer the question to a Full Bench, As I find that, in fact, there is no conflict there is no need to make any reference for decision by a Full Bench.
10. In Venkatachariar v. Mohammad Fai-zuddin Sahib, 1940-2 Mad LJ 374: (AIR 1941 Mad 17) relied on by the learned Advocate for the defendant-petitioner, Horwill, J. held that, when a petition under Order 9, Rule 9, C. P. C. had not been dismissed for default, no petition would lie to reopen the previous order and that ff a petition lay at all, it would presumably be a review petition. In that decision, reference was made to the decision in AIR 1926 Mad 654 and distinguished on the ground that in the case under actual consideration by him the petition under Order 9, Rule 9, C. P. C. had not been dismissed for default and that, therefore, the Bench decision did not apply.
11. The learned Counsel for the petitioner also relies on the following decisions. In Mohd. Farkhuida Ali v. Khamrunnissa, (1963) I Andh WR 114, it was held that no appeal was provided for from an order in a second application that is, an order dismissing an application which was for restoration of an application for setting aside the dismissal of a suit or an ex parte decree. To a similar effect is the decision in Gaja v. Mohd. Faruk. AIR 1961 All 561 wherein it was held that Order 13 did not provide for an appeal from an order dismissing for default an application for restoration of an application under Order 9, Rule 9 and Order 9, Rule 13, C. P. C. But those decisions do not in any way help the revision petitioner-defendant--for, the question raised in the instant case namely, whether a second application is entertainable was not raised or considered in those cases. I find no reason to go into details of facts of those cases.
12. In Perivakarupa Thevar v. Vellai Thevar, AIR 1961 Mad 338. it was held that Order 9, Rule 13, C. P. C. was not applicable to proceedings in a Civil Court which are being held on a reference by a Magistrate under Section 146, Cr. P. G. The learned Judges of the Division Bench observed as follows:--(at P. 341)
'In our opinion, an application under Order IX. Rule 13 stands on the same footing as one tinder Order IX, Rule 9. A right to have an ex parte order set aside is not procedural but substantive in character. Further Section 141, C. P. C. must be read subject to special procedure prescribed for a proceeding under a particular enactment (at p. 342)
'We have already pointed out that in terms the provisions of Order IX, Rule 13 apply only to suits But the learned Judges of the Division Bench have also made observations approving of the decisions in AIR 1926 Mad 325 and AIR 1926 Mad 654 as follows: (at p. 341): 'It is now well settled that Section 141, C. P. C. does not apply to execution proceedings, There is also ample authority interpreting the word 'proceeding' as relating to original matters in the nature of suit.. AIR 1926 Mad 325 and AIR 1926 Mad 654.'
A perusal of the decision shows that the learned Judges approved of the above decisions and held that proceedings in a civil Court under Section 146, Cr. P. C. could not be called original in character and that they did not in any way suggest that a second application such as concerned in this case was not original in character.
13. In Chandrika Singh v. Parsidh Nara-yan Singh, : AIR1960Pat504 also it was held that an application to restore an application which had been dismissed for default under Order 9, Rule 4, C. P. C. was maintainable under Section 151, C. P. C. In Madan Lall v. T. M. Bank Ltd., AIR 1954 Assam 1 a Full Bench of the Assam High Court held that, where an application under Order 9, Rule 13, C. P. C, had itself been dismissed for default, then in so far as the Court dismissing the application for default is concerned, there may be remedy available by application under Section 153, C. P. C. In Poorna Chand v. Komalchand, : AIR1962MP64 , the Madhya Pradesh High Court held that the dismissal for default of an application for restoration of a suit under Order 9, Rule 9, C. P. G. can be set aside in exercise of the Inherent powers of the Court under Section 151, C. P. C. They also held that the power of the Court to set aside was not fettered by any rule of limitation.
14. The effect of the Madras decisions which are binding on this Court, AIR 1926 Mad 325 and AIR 1926 Mad 654 is that a second application lies under Order 9, Rule 9, C. P. C. itself on the ground that an application under Order 9, Rule 9, C. P. C. to set aside the dismissal of a suit is of a original nature for the purpose of the decision of the Privy Council in (1895) TLR 17 AH 106 (PC). There are sonic other decisions of other High Courts which have held that a second application lies under Section 151, C. P. C., vide : AIR1960Pat504 , AIR 1954 Assam 1 (FB) (supra), and : AIR1962MP64 (supra). There is no decision to the effect that a second application does not lie at all. The decision in AIR 1926 Mad 412 (supra) does not lay down that a second application under Order 9, Rule 9, C. P. C. does not lie and it has been distinguished by the Division Bench in AIR 1926 Mad 054. I find that the second application was maintainable. The first contention is not tenable,
15. Contention No. 3: On the very day on which I. A. No. 141 of 1956 was posted for hearing, the Advocate for the plaintiff filed a petition (I. A. No. 322 of 1959) for restoring I. A. No. 141 of 1956. The affidavit, which was filed by the Advocate's clerk, disclosed that the plaintiff had left his vakalat with his Advocate, Sri N. K. Viswanathayya and that the latter could not attend the Court in time on account of personal inconvenience and that the Advocate's clerk, who gave the affidavit, had custody of the vakalat and that when he came to Court, he found that I. A. No. 141 of 1956 had been dismissed for default. The learned District Munsif held that there was negligence on the part of the Vakil's clerk in not having been present in Court at the time when the case was called; but, all the same, he held that it was not a case suitable for penalising the plaintiff. There was some negligence but it was not gross negligence inasmuch as I. A. No. 322 of 1959 was filed on the very same day with an affidavit
16. In Shamdasani v. Central Bank of India, AIR 1938 Bom 199, it was held that application for restoration should be refused under Order 9, Rule 9. C. P. C. only if there is gross negligence or gross carelessness and that if a person, whose suit had been dismissed subsequently appeared on the same day and produced excuse for his absence which was not unreasonable, the Court ought to exercise its discretion in his favour.
17. In Rama Sankar v. Iqbal Husain, AIR 1932 All 450, the relevant facts were as follows. An application for restoration of suit under Order 9, Rule 9, C. P. C. was rejected by Court on the ground that the applicant was called twice but did not appear. Plaintiff immediately filed an application for restoration and swore to an affidavit on the same day that he was present when the case was called but went to search for his pleader and that when he returned later on, he found that the suit had been dismissed for default. The learned Judge held that it was a fit case for allowing the application.
18. I find that, in this case, there was not (gross negligence and on merits, the application I. A. No. 322 of 1959) could be allowed.
19. Contention No. 1: Sri Shankara Sastry, the learned Advocate for the petitioner relies on the decisions in Poongavana Gramani v. Manicka Gomndan, 1932 Mad WN 328 and U Aung Gyi v. Burma Government, AIR 1940 Rang 162 (FB) for this purpose. In this particular case, the negligence whether on the part of the Advocate's clerk or on the part of the Advocate was not gross negligence. It was not of such a nature as to warrant the dismissal of the application--I. A. No. 322 of 1959--. So, It has to be excused on merits. The question as to whether it can be excused on the ground that otherwise the plaintiff would have to suffer and would be penalised does not really arise do not consider it necessary to go into this contention.
20. I find that there is no room to interfere with the order of the lower Court.
21. In the result, I dismiss the revision petition with costs.