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Asghar Ali Khan Vs. Bharat Indu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1923)ILR45All148
AppellantAsghar Ali Khan
RespondentBharat Indu and ors.
Excerpt:
civil procedure code, section 141; order ix; order xliii, rule 1 - execution of decree--application for execution dismissed for default--application for restoration--appeal. - - on the 28th of may, 1921, an application for execution of a certain decree, which had been made on the 7th of april, 1920, was dismissed by the execution court on the ground that the decree-holder had failed to prosecute it with due diligence......not described as falling under the provisions of any specified section or rule of the code of civil procedure, but offering an explanation of the alleged default of prosecution and asking the court to restore the application of the 7th of april, 1920, to its file and to proceed with its disposal according to law. the court below has rejected his application on the ground that the provisions of order ix of the code of civil procedure have no application to execution proceedings and that the decree holder's remedy, if any, was to make a fresh application for execution of his decree. the authority quoted for this view of the law is the decision of the privy council in the case of thakur prasad v. fakir-ullah (1894) i.l.r. 17 all. 106. on the face of it this case is decisive against the.....
Judgment:

Piggott and Walsh, JJ.

1. This is an appeal by the decree-holder in an execution matter. In the form in which it comes before us, in consequence of the decision of the court below, it raises a simple question of law. On the 28th of May, 1921, an application for execution of a certain decree, which had been made on the 7th of April, 1920, was dismissed by the execution court on the ground that the decree-holder had failed to prosecute it with due diligence. On the 1st of June, 1921, the decree-holder presented to the court below an application, not described as falling under the provisions of any specified section or rule of the Code of Civil Procedure, but offering an explanation of the alleged default of prosecution and asking the court to restore the application of the 7th of April, 1920, to its file and to proceed with its disposal according to law. The court below has rejected his application on the ground that the provisions of Order IX of the Code of Civil Procedure have no application to execution proceedings and that the decree holder's remedy, if any, was to make a fresh application for execution of his decree. The authority quoted for this view of the law is the decision of the Privy Council in the case of Thakur Prasad v. Fakir-ullah (1894) I.L.R. 17 All. 106. On the face of it this case is decisive against the decree-holder. He had no right in law to apply for the restoration of his application of the 7th of April, 1920, and, what is more, nothing in Order XLIII, Rule 1, Clause (c) of the Code of Civil Procedure would give him any right of appeal against the decision of the court below rejecting his application. It has been contended before us that the decision of the Privy Council above referred to ceases to govern the case, by reason of the provisions of Section 141 of the present Code of Civil Procedure, Act No. V of 1908, in which an explanation, which had been added by the amending Act No. VI of 1892 to Section 647 of the former Code of Civil Procedure, was omitted. The history of this matter is somewhat curious, but we think there can be no doubt that the correct view is that taken by the Chief Justice of the Calcutta High Court in the case of Hari Charan Ghose v. Manmatha Nath Sen (1913) I.L.R. 41 Calc. 1 (4). This ruling has since been followed by the Patna High Court in the case of Babui Ritu Kuer v. Alakhdeo Narain Singh (1918) 4 Patna L.J. 330.

2. We think the decision of the court below was correct and, moreover, that no appeal lies against it. We dismiss this appeal with costs.


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