1. This is an application by plaintiffs against an order restoring an application made by the defendants respondents for setting aside an ex parte decree.
2. In 1931, the plaintiffs' mother filed a suit for a declaration that a certain will executed by her father in favour of the defendants was null and void. Raghunath Prasad, defendant opposite party, was one of these defendants. He did not contest the suit. The suit was contested by the first five defendants. The suit was decreed in 1933 by the trial Court. An appeal by the contesting defendants was dismissed for default by this Court in December 1933. More than 11 years later, that is, on 31st January 1945, Raghunath Prasad filed an application for setting aside the ex parte decree. This application was fixed for hearing on 15th September 1945. On that date the opposite party was absent and the Court fixed 17th September 1945 for hearing. On 17th September the opposite party made an application for adjournment. This application was allowed on payment of Rs. 25/- as costs and the case was fixed for hearing on 27th October 1945. On that date, the opposite party again absented himself and failed to pay the costs as ordered by the Court. The Court, however, passed the following order :
'The decree sought to be vacated was passed on 26th April 1933 and the applicant says that he has had no knowledge in spite of lapse of about 12 years time. I disbelieve his version and reject the application with costs.'
Then on 28th November 1945 the opposite party made an application for setting aside the order of 27th October 1945. This application was headed as one Under Section 151, Civil P. C. The Court allowed this application by the order under revision. The order is a short one and may be quoted :
'The reasons are fair. The man was ill. He had been asked to pay Rs. 25/- as costs on the earlier date and had not paid. I, therefore, set aside the ex parte order dated 27th October 1945 if the applicant pays Rs. 25/- to opposite party within 10 days of this date. On default this application will stand dismissed.'
3. The plaintiffs have come up to this Court in revision against this order. On their behalf it has been urged that the Court, having dismissed the application for setting aside the ex parte decree on its merits by its order dated 27th October 1945, had no jurisdiction to set aside that order under its inherent powers. It is urged that the opposite party bad a right to have the order set aside by an appeal. He did not pursue that remedy and his application for setting aside the previous order was not entertainable. I think that this contention has force. As will appear from the order dated 27th October 1945, the Court had not dismissed the application for default of appearance of the opposite party, but had decided it on the merits. The application having been dismissed on merits, the opposite party had a right of appeal to the proper Court. He did not take recourse to that remedy. I think that, in the circumstances, the Court had no jurisdiction to set aside its own order under its inherent powers.
4. It should be noted that it is only in rare cases that a Court can set aside its own judgment under its inherent powers. Order 20, Rule 3., Civil P. C. lays down:
'The judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it and, when once signed, shall not afterwards be altered or added to, save as provided by Section 152 or on review.'
5. It has not been urged on behalf of the opposite party that his case fell within the purview of either Section 152 or Order 47, Rule 1, Civil P. C. It is contended that since the opposite party was not present in Court on the date of hearing, the judgment, though on merits, should be treated as one for default of appearance. As I have already stated, the lower Court bad adjourned the case on 17th September 1945 on payment of Rs. 25/- as costs. These costs were not paid and when the case was called on 27th October 1945, the Court was entitled to decide the case on the merits and not to dismiss it for default. It is true that the provisions of Order 17, Civil P. C. apply to Suits and not to applications for restoration, as Section 141, Civil P. C. applies only to original proceedings in the nature of suits. Even if Order 17 cannot strictly be applied to restoration applications, there is nothing to prevent the principles underlying that order from being applied to miscellaneous proceedings. When a party has been ordered to do something for the progress of the suit and he fails to do that, the Court may on the adjourned date apply the principle of Order 17, Rule 3, Civil P. C. and decide the matter on the merits, as it stands with the materials on the record. I must, therefore, take it that the Court had jurisdiction to decide the case on the merits on 27th October 1945.
6. If strict regard be had to the language of Order 20, Rule 3, Civil P. C., no judgment can be set aside under the inherent powers of the Court Under Section 151, Civil P. C. But an exception has been made in the case of a judgment having been delivered by mistake under a misapprehension of facts, e.g., the case having been dismissed in default in ignorance of the fact that the plaintiff was dead; vide Debi Bux v. Habib Shah, 35 ALL, 331 : (40 I. A. 151 P. C.)
7. This principle of the exercise of inherent jurisdiction has been extended to a case in which a party has been prevented from appearing in Court, not on account of any fault of his, but for unavoidable circumstances, and the Code does not make any provision for the setting aside of the ex parte order or for the restoration of the case, e.g. when an application for restoration itself has been dismissed for default, it can be restored under the inherent powers of the Court, vide Yudhishter Lal v. Fateh Singh : AIR1929All721 , or an execution application having been dismissed for default may be restored under the inherent powers of the Court, vide Mohammad Hanif v. Ali Raza : AIR1933All783 . But no authority has been shown to us in support of the view that on the facts similar to the facts of the present case, the Court can set aside its order passed on merits.
8. I would accordingly allow this revision, set aside the order of the Court below dated 27th April 1946 and dismiss the application of the opposite party dated 28th November 1945.
9. I would allow the applicants to have their costs in both the Courts.
Bind Basni Prasad J.
10. I have nothing to add to the judgment of my learned brother.
11. The revision is allowed, the order of the Court below is set aside and the application of the opposite party dated 28th November 1945 is dismissed. The applicants will have their costs in both the Courts.