1. The above two C. R. Ps. Can be disposed of together. C. R. P. No. 4874/80 is directed against E. A. No. 131/77 in E. P. No. 117/76 in S. C. No. 352/57 on the file of the District Musif's Court, Chodavaram. C. R. P. No. 7135/79 is directed against C. M. A. No. 5/77 on the file of the Sub Court, Chodavaram.
2. The petitioner before me in both the C. R. Ps. Is the decree-holder. He filed E. P. No. 117/76 for execution of the decree in the trial court. The respondent-judgment-debtor raised a plea under Ordinance 25 of 1976 (later replaced by Act 7 of 1977) and claimed that the decree could not be executed as it was wiped out under the provisions of the said Ordinance. The case was posted to 18-2-1977 for enquiry. The petitioner-decree-holder wanted to examine the village Karnam of the village which the judgment-debtor was a resident in order to furnish proof of the agricultural land owned by the judgment-debtor, but for some reason or other the village Karnam could not be served with the summons sent. On behalf of the petitioner the counsel prayed for an adjournment when the matter was called on 18-2-1977. The learned trial Judge refused the adjournment on the ground that the petitioner was not ready and dismissed the E. P. on the same day stating as follows:
'Decree-holder not ready. The burden of proof under Ordinance 25 of 1976 is on the decree-holder and since he did not prove that the judgment-debtor is not attracted by Ordinance 25 of 1976, the E. P. is dismissed as the claim abated under Ordinance 25 of 1976.'
The petitioner filed E. A. No. 131/77 under Order 21, Rule 106, C. P. C. on 17-3-1977 for restoration of the execution petition. In the said application the petitioner stated that the village Karnam of Arjapuram was summoned to attend the Court on 18-2-1977 with records to show the extent of land owned by the judgment-debtor, that the summons were not served on the said village Karnam and therefore a request was made for an adjournment and that the Court refused the adjournment and dismissed the E. P. for default. He further stated that he had no intention not to get ready for enquiry and that there was no default on his part as it was for the Court to serve the summons on the witness. The judgment-debtor filed a counter stating that the application not maintainable and that sufficient cause was not made out. It was further stated that the dismissal was not for default and therefore the provisions of Order 21, Rules 104 and 105, C. P. C. did not apply to the facts of the case.
3. The learned District Munsif who heard E. A. No. 131/77 dismissed the same on 31-8-1977 stating that the order passed by his predecessor on 18-2-1977 was not an order made for default of the petitioner but it was an order passed on merits of the E. P. and that it was open to the petitioner but it was open to the petitioner to refer a revision. He also referred to events anterior to 18-2-1977 to say that the petitioner had no sufficient cause for his non-appearance, as he was not ready on the dates of the earlier adjournments. According to him it was to be treated as a case where the evidence on the side of the decree-holder was closed. Therefore he dismissed the petition. Against the said order the petitioner preferred C. M. A. 5/77 to the Sub-Court, Chodavaram contending that the order dated 18-2-1977 in the E. P. was an order dismissing the same for default and could not be said to be an order passed on merits. The learned Subordinate Judge dismissed the appeal stating that the order dated 18-2-1977 was an order passed on merits and the petitioner should have gone by way of revision to the High Court and that therefore the application under Order 21, Rule 106, C. P. C. was not maintainable. Against the order passed in C. M. A. the petitioner has filed C. R. P. No. 7135/79 while against the order dated 31-8-1977 dismissing E. A. No. 131/77 the petitioner has filed C. R. P. No. 4874/80 subsequently. That is how these two C. R. Ps. Have come before me.
4. In these revisions it is contended by Sri. S. C. Venkatapathi Raju, the learned counsel for the petitioner that the Courts below have erred in not treating the order dated 18-2-1977 as an order treating the order dated 18-2-1977 as an order of dismissal for default. According to him, the village Karnam was an important witness to be examined on behalf of the decree-holder and that if the summons were not served by the date to which the E. P. stood adjourned viz., 18-2-1977 he could not be blamed and that on that ground it was not permissible for the trial Court to state that the petitioner was not ready and to dismiss the E. P. Whatever the language employed in the order it must be treated as a dismissal for default in the eye of law, according to him.
5. On the other hand Sri K. Nageswara Rao, the learned counsel for the respondent-judgment-debtor contended that the order dated 18-2-1977 was an order passed on merit and cannot be equated to an order of dismissal for default.
6. In these revision petitions therefore the only question that falls for consideration is : Whether the order dated 18-2-1977 dismissing the E. P. in the terms mentioned above can be treated as an order on merits or as a order dismissing the E. P. for default
7. Order 21, Rule 106, C. P. C. in so far as it is material for our purpose reads as follows:
'R. 104 (1). The Court, before which an application under any of the foregoing rules of this order is pending, may fix a date for the hearing of the application.
(2) Where on the day fixed or any other day to which the hearing may be adjourned the applicant does not appeal when the case is called on for hearing the Court may make an order that the application to be dismissed. (3) ... .... ... ... .. ... .. ..'
The explanation to Rule 104 is not material for our purpose.
8. Order 21, Rule 106, C. P. C. reads as follows in so far as it is relevant for our purpose:
'Rule 105 (1). The applicant, against whom an order is made under sub-r. (2) of R. 105 or .. ... .... May apply to the Court to set aside the order, and if he satisfies the Court that there were 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 30 days from the date of the order..... .... ... ...'
Though there is no direct ruling under Order 21, Rules 104, 105, I opine the following rulings are relevant.
9. IN R. Namperumal Naidu v. Alwar Naidu, AIR 1928 Mad 831 a Division Bench of the Madras High Court consisting of Madhavan Nair and Curgenven, JJ. Consider the meaning of the word 'appearance' occurring in Order 9, C. P. C. and Order 17, Rule 2, C. P. C. In that case the trial Court passed an order as follows:-
'the plaintiff in person wants time again. Time refused. Plaintiff refused to go on with the case. Suit is dismissed without costs.'
Madhavan Nair, J. observed in that case as follows:
'The term 'appearance' is not defined in the Code. To constitute 'appearance' within the meaning of Order 9, C. P. C. by a pleader, I think, it must be shown that the pleader is duly instructed and able to answer all material questions relating to the suit. ..... .... ...... When the pleader asks for an adjournment which is refused and does not take any part in the trial, it being obvious that he cannot help his client as he knows nothing about the case, can it be said that the pleader is duly instructed and ale to answer material questions put by the Court? To my mind the inference to be drawn from the circumstances is clear. The conduct of the vakil is not taking any part in the trial when his request for an adjournment is refused shows that he does not propose to appear in the case any further and that he disassociated himself from the case. In such circumstances it cannot be said that the pleader is duly instructed and able to answer all material questions put by the Court relating to the suit... .... ..... The mere attendance of a pleader who is obviously unable to answer all material questions relating to the suit cannot be appearance on behalf of his client.'
10. Adverting to the plea that the plaintiff in that case himself appeared and asked for an adjournment Madhavan Nair, J. observed as follows:-
'the personal appearance of the plaintiff does not make any difference.
The fact that he took some part in the case does not affect the situation. As I am of the opinion that this is a case where the plaintiff did not appear either by himself or by his pleade4r when the case was disposed of by the learned Subordinate Judge the disposal of the case falls under Order 17, Rule 2, C. P. C. .. ... ..... and so, if there is sufficient cause for his non-appearance the Court can make an order setting aside the dismissal .. .. .... I do not think that there is anything in the form of the judgment which prevents me from holding that the suit was dismissed for plaintiff's default of appearance.'
11. In Musaliarakath Muhamad v. Manavikrama, AIR 1923 Mad 13, Ayling, J. sitting with Odgers, J., while dealing with Order 41, Rules 17 and 19, C. P. C. which also used the word 'appearance' observed as follows:
'To all intents and purposes he was unrepresented, for it is clear that Mr. Sivarama Panikar was only instructed to apply for an adjournment and was in no position to pretend to argue the merits of the appeal.
The case is precisely similar to that in Satish Chandra v. Ahara Prasad, (1907) ILR 34 Cal (FB) in which a Full Bench of the Calcutta High Court held that the party must be deemed to be unrepresented .. ... ... In a latter case Venkata Rama Aiyar v. Nataraja Aiyar, (1913) 24 Mad LJ 235 another Bench of this Court has held that where the Vakil was not instructed to argue her case but only to appear for an adjournment, there was no appearance.'
In the same case Odgers, J. observed as follows :-
'In (1907) ILR 34 Cal 403, a Full Bench of the Calcutta High Court held that an application by a pleader who is instructed to apply for an adjournment which is refused is not an appearance within the meaning of the Civil Procedure Code and that a dismissal in such cases is for default.'
In the present case the petitioner-decree-holder only prayed for an adjournment so that summons could be served on the village Karnam for the purpose of proving the extent of land owned by the judgment-debtor. The Advocate having been instructed to obtain an adjournment could not have proceeded with, the case when the adjournment was refused. In the light of the Division Bench judgments mentioned above, it cannot be treated that there is any effective appearance either by the Advocate or by the party within the meaning of the word 'appear' in Order 21, Rule 104, C. P. C. The order dated 18-2-1977 must therefore be treated as an order dated 18-2-1977 must therefore by treated as an order of dismissal for default of 'appearance' and the application under Order 21, Rule 105, C. P. C. was therefore maintainable.
12. The trial Court while refusing to allow E. A. No. 131/77 has also referred to the events anterior to 18-2-1977 which, according to it, pointed out that the decree-holder was not ready. It is now well settled that the question of sufficient cause for non-appearance should be considered on the basis of the events which took place on the date of default and that the earlier conduct of the party is not so much relevant. Having regard to the fact that the petitioner is not at fault for the summons not being served on the witness, I consider that the trial Court erred in thinking that the petitioner was at fault. The allegations in the E. A. are sufficient to make out that there was sufficient cause for the petitioner not being able to proceed with the case, as the witness on whom summons were sought to be served did not appear. I, therefore, hold that the order dated 18-2-1977 was one for default and also that the petitioner has made out sufficient cause for his non-appearance on 18-2-1977 and that the order dismissing the E. P. for default is liable to be set aside. The Court below will not take up the E. P. and proceed to see that summons are duly served on the witness and take into account any other evidence which both parties may adduce and dispose of the E. P. in accordance with law.
13. In the result the C. R. Ps. Are accordingly allowed and the order in C. M. P. No. 5/77 is set aside and the E. A. No. 131/77 is allowed restoring the E. P. and the E. P. shall be disposed of as mentioned above. There shall be costs in C. R. P. No. 4874/80. In the other C. R. P. there will be no order as to costs.
14. Order accordingly.