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Sumer Chand Vs. Beni Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1929All123
AppellantSumer Chand
RespondentBeni Prasad and anr.
Excerpt:
- .....the appellant argues that the proceedings were not governed by order 9, civil p.c., and that the dismissal for default did not come under that order so as to compel him to apply for restoration. his contention is that this is an order under section 47 of the code and is a decree and as such appealable. we are unable to accept this contention. section 2(2), when defining a decree and stating that, it includes the determination of any question within section 47, expressly states that it shall not include any order of dismissal for default. the order in question, therefore, is not appealable as a decree.3. if the order was not covered by order 9 the dismissal certainly was under the inherent jurisdiction of the court. the proper remedy for the appellant would have been either to apply for.....
Judgment:

Sulaiman, Ag. C.J.

1. This is an appeal by the judgment-debtor arising out of certain execution proceedings. Objections were taken to the execution and attachment of the decree but on the date fixed the objector was absent; his pleader stated that he had no instructions to proceed with the objections. The Court ordered that the objections be struck off for default. It is from this order that this appeal has been preferred.

2. The learned advocate for the appellant argues that the proceedings were not governed by Order 9, Civil P.C., and that the dismissal for default did not come under that order so as to compel him to apply for restoration. His contention is that this is an order under Section 47 of the Code and is a decree and as such appealable. We are unable to accept this contention. Section 2(2), when defining a decree and stating that, it includes the determination of any question within Section 47, expressly states that it shall not include any order of dismissal for default. The order in question, therefore, is not appealable as a decree.

3. If the order was not covered by Order 9 the dismissal certainly was under the inherent jurisdiction of the Court. The proper remedy for the appellant would have been either to apply for review of judgment or to invoke such inherent power. In any case no appeal lies to us. The appeal is dismissed under Order 41. Rule 11.


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