S.K. Ray, J.
1. The plaintiff-decree-holder is the petitioner. This revision is directed against an order dated 18-1-68 passed by the Executing Court in Execution Case No. 9/65 letting aside the final decree in O. S. No. ft/66.
2. The sole question raised is that the executing court had no jurisdiction to treat the application of defendant-1 -judgment-debtor under Section 47, C, P. C. as one under Order 9, Rule 13, C. P. C. and exercise jurisdiction in respect of the same-on its original side and set aside the final decree. The second ground of lack of jurisdiction is founded on the allegation that the petition under Section 47, even if treated as one under Order 9, Rule 13. C. P. C is barred by limitation.
3. It is necessary before dealing with the points raised to set out certain salient facts leading upto the passing of the impugned order by the execution court. The plaintiff filed T. S. No. 9/55 for partitioning his eight annas share in the joint family property. In due course, a preliminary decree was passed on 23-7-57 decreeing the plaintiff's moiety share in the suit properties.
The son of defendant-1 who is the main contestant in this revision filed an application under Order 9, Rule 13 on 22-1-58 for setting aside the preliminary decree. During the pendency of that application, the preliminary decree was sealed and signed on 8-2-58 and subsequently the petition for setting aside that decree was dismissed for default. Thereafter the plaintiff-petitioner filed an application for passing of the final decree which was dismissed ultimately due to his negligence in taking steps in the matter. Some proceedings by way of appointment of a Civil Court Commissioner had taken place in course of this first application, but they are not very material for purpose of this application as ultimately the first application was rejected on 27-1-59. Thereafter the plaintiff-petitioner filed a second application on 12-5-61 for making the decree final. The Court thereupon directed filing of the requisites for issue of notice on defendants by 20th of June, 1961. As this order was not complied with by the plaintiff-petitioner, he was granted further time till 5-7-61 to take steps for service of notice, He again failed to file the requisites for notice
Thereafter the case was adjourned to 18-7-61 when the plaintiff instead of filing the requisites filed a copy of the decree and deposited the fees for Civil Court Commissioner and the Court became oblivious of its previous order and thereby failed to insist upon its compliance for filing the requisites to issue notice of this proceeding. Thereafter steps were taken for nomination of the Civil Court Commissoner by the District Judge and after a long lapse of time, ultimately on 29-11-61, one Sri B. N. Chakravarty was nominated at Civil Court Commissioner.
A writ was issued to him fixing 8-1-52 for his report. He submitted his report on 13-11-62, which was placed before the Court on 17-11-62. The Court thereafter ordered notice of this report to go to the parties or their lawyers. This proceeding was adjourned once more as the parties had not been informed about it. Later on, it appears, the plaintiff's lawyer Sri Sadhasiv Misra was duly informed, so also one Digambar Satpathy as the guardian ad litem of minor defendants, but none of the other defendants including defendant 1 was informed, and naturally one of them appeared either in person or through counsel. On 11-1-63 the Court passed the following order.
'Both parties have been informed through their lawyers. No objection filed. To 21-1-63 for orders.'
On 21-1-63 the case was adjourned to 13-2-63 where the commissioner's report was accepted and the decree was made final. Thereafter the decree was prepared on 18-7-64 and was sealed and signed on 22-7-G4.
4. From the aforesaid narration of facts, it is patent that the final decree was passed against defendant 1 without any notice to him of such proceeding. Notice of the final decree proceedings is mandatory as the same cannot be passed behind the back of a party. That would offend the fundamental principle of Audi Alteram Partem. There was divergence of opinion on this matter and it has been held by the Patna High Court that notice of final decree proceeding is not mandatory, but a recent decision of this Court reported in ILR 1964 Cut 45=(AIR 1964 Orissa 55) Swarnamoyee Dasi v. Devendra-nath Karan hah after an elaborate discussion of different views holding the field dissented from the Patna decision Surendra Kumar Singh v. Mukund Lal Sahu. AIR 1949 Pat 68 that final decree can be passed behind the back of the defendant. It has mv respectful concurrence. It was also further held therein that the final decree passed without service of notice on the parties to the preliminary decree cannot be deemed to be null and void. It is immaterial for the purposes of this case to apportion blame for non-service of summons on defendant 1. It cannot, however, be gainsaid that the party has suffered due to the act of the Court in being negligent about enforcing its own orders
5. The present execution was levied by the plaintiff-decree-holder filing an application on 6-3-65. This application was numbered as Ex. Case No. 9/65 The decree-holder prayed by a petition dated 13-3-65 for issue of notice of the execution proceedings on the judgment-debtor by a special peon and the said application was allowed fixing 22-3-65 as the date for service return. On 23-3-65, as the order sheel shows, service return was not filed which appear! to be strange. It is not easily comprehensible how a special peon would not be able to serve the notice and submit his return within ten days granted by the Court forthe purpose. The- next order shows that the service was returned and the service was considered by the Court to be sufficient. Thereafter steps were taken for delivery of possession which was effected in part on 29-4-65.
On 12-5-65 defendant-1 filed his application under Section 47 challenging the executability of the final decree. In that application all the allegations which could be properly raised in an application under Order 9, Rule 13, C. P. C. have been made. This petition was registered on 27-4-65 and on 15-9-65 to obviate any technical objection, defendant-1 filed a petition praying for conversion of this application under Section 47 to one under Order 9, Rule 13, C. P. C. The plaintiff filed his objection both to the application under Section 47 as also to the conversion petition. Conversion was allowed on 22-11-65. It appears from the subsequent orders that the decree holder seems to have waived all objections, whatever their legal value, to the conversion and took an active part in trial of the petitioner as one under Order 9, Rule 13. He has accepted costs awarded against the judgment-debtor-petitioner in that proceeding by the Court for granting adjournment and has likewise paid costs. Thus, both parties led their respective evidence.
Defendant-1 not only stated in his application under Section 47 that his knowledge about the passing of the final decree was acquired on 29-4-65 at the time when delivery of possession was effected at the spot by the Court Amin, but he also deposed to that effect in the Court. The First Additional Subordinate Judge held that defendant-1 came to know for the first time on 29-4-65 of the passing of the ex parte final decree and accordingly his application under section 47 which was filed on 12-5-65 was within time provided for filing of an application under Order 9, Rule 13. The Subordinate Judge passed the following order on 22-11-65:
'Let the petition dated 12-5-65 be treated as one under Order 9, Rule 13. C. P. C.'
In holding that the 0. 9, Rule 13 petition was in time, he obviously held that the date of its institution shall be deemed to be the date when Section 47 petition was filed, i.e., 12-5-65 as the legal consequence of the order of conversion and was accordingly in time provided for it from the date of defendant No 1's knowledge, i.e. 29-4-65
6. The plaintiff-decree-holder appears to have waived all objections to the order of conversion and participated in the hearing of the Misc. Case without trying to unsettle the order of conversion by way of revision. The order dated 22-11-65 is a clear intimation to the parties that be is switching over to his jurisdiction under Order 9. Rule 13 as the Court by which the decree was passed in relation to the petition filed under Section 47.
7. This order of conversion can be supported as one passed by the Court in exercise of its inherent powers under Section 151, C. P. C. in the interest of justice. There is no other provision in the Code which deals with the same and in the absence of any express provision, there is nothing illegal in the exercise of the jurisdiction under Section 151. That apart, the learned subordinate Judge seems to have acted on the principle that since all the relevant allegations that are expected to be made under Order 9, Rule 13 had been incorporated in the petition under Section 47, the parties should not be deprived of their remedly, merely by reason of its erroneous labelling. It appears from the petition that he has mentioned both the original suit -number as well as the execution case number. Secondly, his order of conversion is sustainable on the other principle, viz., that since he has been partly responsible for passing the final decree without notice to the applicant-defendant 1 his interest deserves protection and it is open to a Court, in such cases, to adopt any procedure which is not prohibited by law to do justice. In affording protection against any negligent act of the Court or its officers, the only legal provision available is under Section 151 and the inherent powers embodied therein. I accordingly find no force in the contention that the petition under Section 47 cannot be converted into one under Order 9, Rule 13 and dealt with as such
8. The second contention that the executing court lacks initial jurisdiction to entertain and dispose of an application under Order 9, Rule 13, assuming Section 47 petition to be one under Order 9, Rule 13. is founded on the reasoning that the jurisdiction for setting aside the ex parte decree is properly exercisable by the Court on its original side, that is to say, the Court in which the decree was passed, but when the Court is exercising its jurisdiction as an executing court, its jurisdiction is strictly limited to execute the decree as it is, and inasmuch as it cannot go behind it, it cannot for the self-same reasons also, set it aside. By referring to the paragraph of the impugned order which is as follows:
'I may notice here that the petition under reference is being considered in the execution proceeding instead of being taken over to original suit file. As soon as the conversion order was passed, the Misc. Case ought to have been transferred to the suit file and there the proceedings ought to have been dealt with But it is after all a mere irregularity not affecting the merits of the case:'
it was contended that the Subordinate Judge was aware that it was not proper for him, sitting on its execution side to deal with an application under Order 9, Rule 13, and the defect of jurisdiction which existed at the commencement and goes to the very root, cannot be cured by his transferring the proceeding to the suit-file. The second and the last contention in my opinion has equally no substance. Section 38 of the C. P. C. provides that a decree may be executed by the Court which passed it. The definition of the expression: 'the Court which passed the decree' according to Section 37 thereof runs thus:
'The expression 'Court which passed a decree' or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include: (a) where the decree to be executed has been passed in the exercise of appellate jurisdiction the Court of first instance, and (b) where the Court of the first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.'
Order 9. Rule 13 runs as follows:
'In any case in which a decree is passed against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside.........'
Rest of the rule is not necessary for the purpose of this case and therefore need not be quoted. Section 47 enumerates the questions which are to be determined by the Court executing the decree. All disputes which are covered by the questions enumerated in Section 47 shall be decided by the executing court and not by a separate suit. The provision regarding execution is by way of extending in regard to certain post-decretal matters, the original jurisdiction conferred on the Court which passed the decree in respect of the subject matter of the suit which in the present case, is the Court of the Subordinate Judge in which the O. S. 9/55 was instituted and in which both the preliminary decree and the final decree were passed. The Court remains physically the same and cannot be deemed to be denuded of its jurisdiction and power vested in it by law as the Court which passed the decree for purposes other than execution merely by reason of the fact that an application for execution had been filed before it. It entertained the execution application primarily because it is the Court in which the decree was passed. It is also because of that character and the jurisdiction vested in it as such, that an application under Order 9. Rule 13 can be entertained.
Therefore, while dealing with an application for execution under Order 21, Rule 11 or with an application under Section 47 or when receiving an application under Order 9, Rule 13, it exercises its powers as the Court which passed the decree. There was in my opinion no inherent lack of jurisdiction of the Subordinate Judge while dealing with an application for execution of the decree or with an application for setting aside theex parte decree. This is not a case where he cannot be said to be incompetent to entertain such an application and dispose it of. The Subordinate Judge assumes his jurisdiction as the Court which passed the decree and as such possesses all the powers exercisable in execution of a decree as well as under Order 9, Rule 13. C. P. C. The execution proceedings are the continuation of the suit and are between the same parties. This is not a case where it can be said that the Subordinate Judge could not have been in seisin of the application under Order 9, Rule 13 or that it was foreign to his jurisdiction
8A. The decisions cited by the plaintiff-petitioner deal with limitation of the power of the executing Court to go behind the decree, while executing it and clearly enunciate that the validity of the decree cannot be challenged though its execution can be refused on the ground that it is null and void and its terms can be construed but not considered on its merits. There is no dispute about the correctness of these principles enunciated in those decisions which are of the Supreme Court as well as of other High Courts in India. None of those decisions, however, says that merely because it is executing the decree, the Court loses its jurisdiction to entertain an application under Order 9, Rule 13 C. P. C. which is specially conferred on it as the Court in which the decree was passed. If the executing court was a transferee court, it would, by statutory provision, have the jurisdiction only to execute the decree, but it would not acquire the entire jurisdiction of the Court which passed the decree. That would be because the transferee court will not be the court which passed the decree within the meaning of Section 37, C P. C In the instant case the Subordinate Judge while entertaining the application under Order 9, Rule 13 was discharging its function within the limits of its jurisdiction as the Court which passed the decree. Therefore. I see no considerable legal impediment to hold that the Court can treat an application under Section 47, as one under Order 9 Rule 13 and dispose it of on that footing.
9. Cases have been cited on behalf of the opposite party to the effect that where a Court which has the jurisdiction and power to entertain and deal with a case as an appeal as also a revision, but the party wrongly files a revision, where an appeal should have been filed, the Court in the interests of justice, can permit conversion of the revision into an appeal and proceed with the same. The cases cited on the point are AIR 1915 cal 268 and AIR 1918 Pat 168. Another case was cited which is reported in AIR 1921 All 321 in which an application filed on the execution side was dealt with on the original side. Though patently on the facts of the case the question of limitation was looming large, it was not mooted obviously because in view of their Lordships that being a case of conversion of one petition intoanother, treating the original character of the petition as of different character, would relate to the date of the filing of the originalpetition.
10. In the view which I have taken in this case there is no lack of inherent jurisdiction of the Court. and that the petition which has been treated as one under Order 9, Rule 13 is not barred by limitation as powers under Section 151 could be exercised in all cases where non-exercise of such power was likely to cause injustice to a party or per petuates abuses of process of court or defeats the ends of justice. The net conse-quence of the impugned order is that the parties have been relegated to the stage of final decree proceedings and as such a fresh final decree proceedings shall be passed after hearing the objections of defendant 1.
In the result, this revision application isdismissed, but there would be no order forcosts.