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Bhagwati Prasad and anr. Vs. Collector of Etah and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1944All218
AppellantBhagwati Prasad and anr.
RespondentCollector of Etah and ors.
Excerpt:
- - the executing court in this case had clearly held that the decree-holder had been grossly negligent and the court was not prepared to exercise its inherent jurisdiction and restore the application a third time, and i think under the circumstances its order was perfectly just and proper......in due course, but on 27th january 1939, the execution application was dismissed for default. the decree-holder, however, applied for restoration and on 6th june 1939, the execution application was again restored. on 26th march 1940, the application for execution was again dismissed for default, but on an application by the decree-holder the executing court again restored it. for the third time on 6th july 1940, the application for execution was dismissed for default. the decree-holder again applied for restoration but this time the application for restoration was dismissed by the executing court on 30th september 1940, on the ground that sufficient ground had not been made out and the decree-holder had been persistently negligent. it may be mentioned here that the decree being for a.....
Judgment:
ORDER

Malik, J.

1. This is a judgment-debtors' application in revision under Section 115, Civil P.C.

2. On 21st September 1935, the Collector of Etah as President of Mt. Chunni Kunwar Trust Committee obtained a decree against the applicants for arrears of rent.

3. The decree was put into execution in due course, but on 27th January 1939, the execution application was dismissed for default. The decree-holder, however, applied for restoration and on 6th June 1939, the execution application was again restored. On 26th March 1940, the application for execution was again dismissed for default, but on an application by the decree-holder the executing Court again restored it. For the third time on 6th July 1940, the application for execution was dismissed for default. The decree-holder again applied for restoration but this time the application for restoration was dismissed by the executing Court on 30th September 1940, on the ground that sufficient ground had not been made out and the decree-holder had been persistently negligent. It may be mentioned here that the decree being for a sum of less than Rs. 500 the decree-holder could execute the decree only within three years as provided for in Schedule 4, Group F, Serial No. 3A, Agra Tenancy Act, 3 of 1926.

4. The decree-holder thus finding it impossible to put in a second application for execution of his decree filed an appeal before the learned Civil Judge of Aligarh. The judgment-debtors raised an objection that the appeal was not maintainable. The lower appellate Court held that the decree-holder's mukhtar-i-am had been continuously negligent, but the decree-holder was the Court of Wards and the Court of Wards was not in any way to blame and he went on to observe that the pairokar of the Court of Wards might be in collusion with the judgment-debtors. He entertained the appeal which had been filed two days beyond time and observed in his judgment that he had a right as the appellate Court to interfere and restore the execution application on payment of Rs. 15 within seven days as costs. It is against that order that this revision has been filed.

5. The objection taken on behalf of the judgment-debtors is that no appeal lay and the lower appellate Court therefore could not entertain the appeal under its inherent jurisdiction. There is no provision in the Civil Procedure Code for restoration of execution applications when they are once dismissed for default. Formerly the view of this Court was that by reason of Section 141 or old Section 647 of the Code of 1882, the procedure prescribed for suits applied to execution applications, but the Privy Council in the case reported in Thakur Prasad v. Faqirullah ('93) 17 All. 106 (P.C.) held that the then Section 647, now Section 141, Civil P.C., did not apply to execution proceedings. Order 9, Civil P.C., obviously does not apply to an order dismissing an execution application for default. The learned Counsel for the decree-holder urges that an application to set aside an order dismissing an application for execution for default is an application under Section 47 of the Code and therefore an appeal did lie. On behalf of the judgment-debtors, however, it is urged that the order could only have been passed under Section 151, Civil P.C., that is, within the inherent jurisdiction of the Court and not under Section 47, Civil P.C., and therefore no appeal lay to the lower appellate Court. I have carefully considered the language of Section 47, Civil P.C. To my mind, Section 47 is not applicable to an application for setting aside an order dismissing an application for execution for default. Under Section 47, Clause (1), Civil P.C., all questions which arise between the decree-holder and the judgment-debtor relating to execution, discharge or satisfaction of the decree have to be determined by the Court that was executing the decree, but the clause will not apply if the execution proceedings have already terminated. The other clauses of Section 47, are obviously not applicable at all. The question as to the provision under which such an order can be set aside has arisen in several cases.

6. In a case reported in Ram Shanker v. Ram Narain : AIR1928All301 , a learned Single Judge of this Court held that such an order was passed under Section 151, Civil P.C. Similarly, in a case reported in Dwarka Das v. Vaish Flour Mill : AIR1931All594 , an application under Order 21, Rule 90, Civil P.C., having been dismissed for default a Bench of this Court held that the executing Court under its inherent jurisdiction could set aside an order dismissing the application for default. Recently in a case reported in Munni Singh v. Collector of Benares : AIR1939All28 , a learned Single Judge of this Court has taken the same view though the application before him did not arise out of execution proceedings but was under Order 23, Civil P.C., for certification of certain payments. The Lahore High Court in a case reported in Mt. Acharji Bibi v. Swami Shesh Sahai ('39) 26 A.I.R. 1939 Lah. 223,6 has taken the same view. I am, therefore, of opinion that the order passed by the trial Court was an order passed under its inherent jurisdiction.

7. Even in cases of suits, this Court in a Full Bench case reported in Ram Sarup v. Gaya Prasad : AIR1925All610 , has held that an ex parte order can only be set aside on sufficient cause being shown and when there was no sufficient ground the Court had no jurisdiction to set aside an ex parte order merely because it might lead to injustice. The executing Court in this case had clearly held that the decree-holder had been grossly negligent and the Court was not prepared to exercise its inherent jurisdiction and restore the application a third time, and I think under the circumstances its order was perfectly just and proper.

8. Against an order of the executing Court passed under Section 151, Civil P.C., no appeal lay before the lower appellate Court and the lower appellate Court had no jurisdiction under which it could entertain the appeal and set aside an order of the executing Court. This Court in a Full Bench case reported in Mukand Lal v. Gaya Prasad : AIR1935All599 has held that a superior Court cannot in the exercise of its inherent power dictate to a Subordinate Court how to decide a particular point arising in a case and the power referred to in Section 151, Civil P.C., would not include a power similar to a |power of revision. The appeal is a creature of statute and where the law has not made any provision for an appeal, a superior Court cannot entertain an appeal under its inherent jurisdiction. To my mind, therefore, the lower appellate I Court wrongly entertained this appeal and wrongly allowed the same.

9. I, therefore, allow this revision, set aside the order passed by the lower appellate Court dated 14th August 1942 and restore the order passed by the executing Court on 30th September 1940. The applicants will get their costs in all the Courts.


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