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Dwarka Das Babu Ram Vs. Vaish Flour Mill - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1931All594; 136Ind.Cas.283
AppellantDwarka Das Babu Ram
RespondentVaish Flour Mill
Excerpt:
.....loss. on the fourth occasion the court ordered him to deposit the necessary costs, but he failed to do so on the date fixed and no one appeared on his behalf. since that case the calcutta high court has agreed that the correct view to take is that order 9 is not applicable, but that there is an inherent jurisdiction in the court to restore an application if a good case is made out. the learned judge has not at all considered the question that he had inherent jurisdiction to intervene if a good case was made out. this point is not expressly taken in the grounds of revision before us, but we think that as the learned judge has not considered the application on the merits, but has merely dismissed it thinking that it is not entertainable, he has failed to exercise jurisdiction which..........we have already pointed out that the application was not limited to order 9, civil p.c. the learned judge has not at all considered the question that he had inherent jurisdiction to intervene if a good case was made out. this point is not expressly taken in the grounds of revision before us, but we think that as the learned judge has not considered the application on the merits, but has merely dismissed it thinking that it is not entertainable, he has failed to exercise jurisdiction which was vested in him.8. we accordingly allow this revision and setting aside the order of the learned subordinate judge send the case back to his court for disposal of the application on the merits. he need only interfere if he is satisfied that good cause was shown.9. in the circumstances we direct.....
Judgment:

Sulaiman, Ag. C.J.

1. This is a revision from an order of the Subordinate Judge of Agra dismissing an application for the restoration of a previous application under Order 21, Rule 90, Civil P.C.

2. After the sale had taken place the applicant applied to have it set aside on the ground of material irregularities and fraud as well as substantial loss. On three occasions he took steps to get service effected on the opposite party but each time the summons was returned with the report that he could not be found. On the fourth occasion the Court ordered him to deposit the necessary costs, but he failed to do so on the date fixed and no one appeared on his behalf. The application was accordingly dismissed on 3rd August 1929.

3. The applicant then applied to have the dismissal set aside on the ground that he had been ill and could not attend the Court. He subsequently filed an affidavit in support of his application. The application did not expressly mention that it was made under Order 9, Civil P.C.

4. The learned Subordinate Judge by a summary order has dismissed the application on the ground that the objection admittedly was an execution proceeding and that Order 9 did not apply to such proceedings.

5. It is contended on behalf of the applicant that Order 9 read with Section 141, Civil P.C. applied to the case. While the old Code was in force it was held by their Lordships of the Privy Council in the case of Thakur Prasad v. Fakir Ullah [1895] 17 All. 106, at p. 111, that inasmuch as Chap. 19 of the Code, consisting of 121 sections, is devoted to the procedure in executions it would be surprising if the framers of the Code had intended to apply another procedure, mostly unsuitable, by saying in general terms that the procedure for suits should be followed as far as applicable. Order 21, Rule 90, had a corresponding section in Chap. 19 of the old Code and the remarks of their Lordships apply with an equal force to this procedure.. It is therefore very difficult to hold that merely because of the general provision contained in Section 141 the procedure provided in this Code for suits shall, as far as it can be made applicable, be followed in all proceedings under Order 21, so as to make Order 9 applicable to the application for setting aside a sale.

6. This was the view expressed by one of us in the case of Ganesh Prasad v. Bhagelu Ram A.I.R. 1926 All. 773 where it was remarked that it was difficult to accept the view that Order 9 would in terms be applicable to such miscellaneous proceedings. It was further pointed out that the proper remedy was by applying to the Court to invoke its inherent jurisdiction under Section 151, Civil P.C., Daniels, J., however relying on certain Oudh cases took a contrary view on the question of the applicability of Order 9, Civil P. C, but agreed that Section 151 would certainly apply. Since that case the Calcutta High Court has agreed that the correct view to take is that Order 9 is not applicable, but that there is an inherent jurisdiction in the Court to restore an application if a good case is made out. We think that Order 9, Civil P. G. cannot be applied to the dismissal of the application under Order 21, Rule 90. As pointed out in Ganes Prasad's case the applicability of Order 9 might involve a further difficulty of allowing appeals from such orders. We therefore think that the learned Subordinate Judge was correct in his view when he remarked that Order 9 did not apply to these proceedings, although he was wrong in thinking that it was in the nature of an execution proceeding.

7. We have already pointed out that the application was not limited to Order 9, Civil P.C. The learned Judge has not at all considered the question that he had inherent jurisdiction to intervene if a good case was made out. This point is not expressly taken in the grounds of revision before us, but we think that as the learned Judge has not considered the application on the merits, but has merely dismissed it thinking that it is not entertainable, he has failed to exercise jurisdiction which was vested in him.

8. We accordingly allow this revision and setting aside the order of the learned Subordinate Judge send the case back to his Court for disposal of the application on the merits. He need only interfere if he is satisfied that good cause was shown.

9. In the circumstances we direct that the parties should bear their own costs of this revision and that the costs in the Court below should abide the event.


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