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Golakbehari Kanungo Vs. Siu Bai and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 27 of 1964
Judge
Reported inAIR1966Ori58
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 and 151 - Order 9, Rule 13
AppellantGolakbehari Kanungo
RespondentSiu Bai and anr.
Appellant AdvocateR.K. Kanungo and ;Sarbeswar Das, Advs.
Respondent AdvocateR.N. Misra and ;R.C. Patnaik, Advs.
DispositionPetition dismissed
Cases ReferredKunjabehari Das v. Chanchala Das. The
Excerpt:
.....(2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the position does not become in any way better if the petitioner had filed an application tinder section 151 c......of the misc. case under order ix rule 13 in exercise of its powers under section 151 c.p.c. the answer would be only in the negative. the application would have been thrown out in limine. the position does not become in any way better if the petitioner had filed an application tinder section 151 c.p.c. before the trial court and come up in revision against that order. 4. the petition has no merit. in the result, the revision fails and is dismissed. but there will be no order as to costs.
Judgment:
ORDER

G.K. Misra, J.

1. On the 22nd June 1963, the petitioner (defdt. No. 1) did not appear in court and was set ex parte. The suit was fixed for hearing to 18-7-1963. On this date, the petitioner also did not take any steps. Both the defendants were absent and the suit was decreed ex parte. On 17-8-1963, he filed an application under Order IX Rule 13 C.P.C. for setting aside the ex parte decree. The Court passed the following order on that very date:

'The petitioner filed a petition under Order IX Rule 13 C.P.C. Register and issue notice to opposite parties fixing 2-9-1963 for return and objection. Requisites within 3 days.'

On 2-9-1963, the Court passed an order to the effect:

'Notice not issued as the requisites not filed. Requisites filed today. Opp. party is absent on call. The case is dismissed for petitioner's default in taking steps.'

On 1-10-1963, the petitioner filed a petition under Section 151 C.P.C. which was registered as Misc. Case No. 240 of 1963. The application was dismissed on 20-11-1963. The learned Subordinate Judge did not accept the petitioner's case that he did not know that he was directed to file requisites within three days. He accordingly held that it was not a fit case for exercising discretion in favour of the petitioner under Section 151 C.P.C. Against this order the Civil revision has been filed.

2. The civil revision is concluded by a pure finding of fact and involves no question of jurisdiction under Section 115 C.P.C. The only contention urged by Mr. Mohapatra on the authority of Uma Shankar v. Murari Das; AIR 1937 Oudh 246 and Kallu Mal v. Municipal Board, Nawalganj, AIR 1942 Oudh 392 is that if due to strict construction of Section 115 C.P.C. it could not be applied to a case in which the amendment was required in the interest of justice, Section 151 CPC. should be resorted to. It may be made clear that both 'these decisions refer to an amendment of a decree and are not strictly applicable to the facts of this case. That apart, these two decisions do not appear to be correct in law. When a lower court exercises its inherent powers under; Section 151 C.P.C., the Court of revision is to see whether the inherent powers were exercised in any of the manner prescribed under Section 115 C.P.C. In other words, if the lower court having the jurisdiction to invoke inherent powers did not do or without having any jurisdiction exercised that power or in the exercise of its jurisdiction has invoked the power illegally or without material irregularity, then only the High Court can interfere in the revision and otherwise not. The mailer appears to be concluded by a decision of the Supreme Court in Keshardeo Chamria v. Radha Kisscn Chamria AIR 1953 SC 23. The facts of that case would make the position clear. In that case, the trial judge at first passed an order which was subsequently changed on the view that he committed an error in dismissing the main execution while he was merely dealing with an adjournment application. Their Lordships held that the Judge had jurisdiction to correct his own error without 'entering into a discussion of the, grounds taken by the decree-holder or the objections raised by the Judgment-debtors. The High Court had reverssed the subsequent decision of the Subordinate Judge holding that he had no jurisdiction to do so. Their Lordships of the Supreme Court held that the High Court was in error in exercise of its powers under Section 115 C.P.C. In that very case Section 151 C.P.C. came far consideration and the interference by High Court under Section 115 C.P.C. was quashed. I am therefore unable to accept the contention of Mr. Mohapatra that even though the lower court rightly exercised its powers within jurisdiction under Section 151 C.P.C., the High Court can independently invoke its powers under Section 151 C.P.C. as if there was no original order. Such a view would directly militate against the exercise of the powers of High Court under Section 115 C.P.C. As to how the powers of a court under Section 151 C.P.C. could be exercised and the powers of the High Court under Section 115 C.P.C. to correct such order have been fully discussed by me in paragraph six of my judgment in C.R. No. 83 of 1964 : (AIR 1966 Orissa 24), Kunjabehari Das v. Chanchala Das. The same arguments need not be repeated here.

3. The contention of Mr. Mohapatra leads to an absurd conclusion. When Order IX, Rule 13 C.P.C application was dismissed for default, could the petitioners have been advised to file an application straightway in the High Court for restoration of the Misc. case under Order IX Rule 13 in exercise of its powers under Section 151 C.P.C. The answer would be only in the negative. The application would have been thrown out in limine. The position does not become in any way better if the petitioner had filed an application tinder Section 151 C.P.C. before the trial court and come up in revision against that order.

4. The petition has no merit. In the result, the revision fails and is dismissed. But there will be no order as to costs.


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