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Joshi Shib Prakash and ors. Vs. Jhinguria and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1924)ILR46All144; 78Ind.Cas.416
AppellantJoshi Shib Prakash and ors.
RespondentJhinguria and ors.
Excerpt:
civil procedure code, section 151 - procedure--section not applicable where a definite procedure is laid down elsewhere. - .....not lay down that a court may act in defiance of the law of procedure. a judge is bound by the code of procedure and the law of limitation. where the code of civil procedure is silent it is possible and frequently desirable to apply the provisions of section 151. but the following qualification should be always applied. section 151 cannot be applied where the rule of procedure is already laid down, and here the case is clear. the remedy lay under order xli, rule 19. owing to the appellants' laxity they waited until it was too late to apply under that rule, and have since endeavoured to obtain the relief they desired by ignoring the provisions of the law. i agree that the learned additional subordinate judge had no jurisdiction to pass his order of the 17th of march, 1923. he passed.....
Judgment:

Stuart, J.

1. Jhinguria and others were appellants in a civil appeal which was transferred to the court of the Additional Subordinate Judge at Agra for disposal. On the date fixed for hearing, as they were absent and unrepresented, the appeal was dismissed for default. It was dismissed on the 25th of April, 1922, under the provisions of Order XLI, Rule 17. There is a specific remedy in the Code of Civil Procedure to cover the case where an appellant has been prevented by sufficient cause from appearing and his appeal has been dismissed under this rule. That remedy is given in Order XLI, Rule 19. Under that rule the applicants could have applied force restoration of their appeal. It appears that they have never, so far, adopted that remedy. On the 6th of July, 1922, when an application under Order XLI, Rule 19, would ordinarily have been beyond time, they applied for a restoration under Order IX, Rule 8, a rule which had no application. Their application was dismissed. They then applied on the 19th of August, 1922, for a review of the original order of the 25th of April, 1922, dismissing their appeal for default. That application was dismissed. They then applied on the 11th of November under Section 151 of the Code. That application was dismissed. They then applied on the 15th of December, 1922, under Section 151 of the Code and on that occasion the presiding officer restored their appeal for hearing. His order is questioned in revision on the ground that he had no jurisdiction to pass it. The plea must prevail. Section 151 is as follows:

Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of, the court to make such orders as may be necessary for the ends of justice or to prevent issue of the process of the court.

2. The enactment of this section declared the existence of an inherent jurisdiction in all courts to go beyond the law of procedure in the ends of justice. But Section 151 does not lay down and could not lay down that a court may act in defiance of the law of procedure. A Judge is bound by the Code of Procedure and the Law of Limitation. Where the Code of Civil Procedure is silent it is possible and frequently desirable to apply the provisions of Section 151. But the following qualification should be always applied. Section 151 cannot be applied where the rule of procedure is already laid down, and here the case is clear. The remedy lay under Order XLI, Rule 19. Owing to the appellants' laxity they waited until it was too late to apply under that rule, and have since endeavoured to obtain the relief they desired by ignoring the provisions of the law. I agree that the learned Additional Subordinate Judge had no jurisdiction to pass his order of the 17th of March, 1923. He passed that order by assuming an authority which he hid not possess. He had no jurisdiction to take up the matter at all. It had been finally decided before. I, therefore, allow this application and set aside that order. The opposite party will pay their own costs and those of the petitioners.


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