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Gour Nag Bhusan Vs. Ananta Sendh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. Nos. 212 and 213 of 1957
Judge
Reported inAIR1958Ori200
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 9, Rule 9 - Order 21, Rule 100
AppellantGour Nag Bhusan
RespondentAnanta Sendh and ors.
Appellant AdvocateN. Kr. Das, Adv.
Respondent AdvocateN. Mukharji, Adv.
DispositionPetition dismissed
Cases ReferredRadha Kissan v. Keshardeo
Excerpt:
.....and having regard to the weight of authorities holding the contrary view, or it appears to me that the madras full bench view, on which the petitioner in the present application mainly relied, is no longer good law on section 151 of the civil procedure code. 2. the learned munsif in his judgment fully considered this aspect of the case and he was satisfied that there was sufficient ground for restoration of the cases......were already dismissed. p.w. 3 supported the version of p. w. 2. the learned munsif in his judgment fully considered this aspect of the case and he was satisfied that there was sufficient ground for restoration of the cases. in view of my finding as aforesaid that the court has inherent jurisdiction to restore such cases dismissed for non-prosecution in exercise of its power under section 151, c. p. c., i should not interfere with the lower court's finding of fact that there was sufficient cause for such restoration.6. the result, therefore, is that these revision petitions c. r. 212 and 213 of 1957 are dismissed with costs. hearing fee rs. 100/-.
Judgment:
ORDER

S. Barman, J.

1. These applications for revision under Section 115 of the Code of Civil Procedure are directed against an order of the 2nd Munsif,Cuttack, restoring Misc. Cases Nos, 210 and 239 of 1954 which were dismissed for non-prosecution. The learned Munsif heard these petitions under the provisions of Order 9, Rule 9 read with Section 151 of the Civil Procedure Code.

2. The relevant facts, so far as necessary for the present purpose, are shortly these: The petitioner in the present revision petitions was an auction-purchaser of properties in Execution Case No. 286 of 1952 in the Court of the Munsif, Second Court, Cuttack. The opposite parties Nos. 1, 2 and 3 (hereinafter referred to as lis pendens purchasers) filed objections under Order 21, Rule 58 of the Code of Civil Procedure on the ground that they were purchasers during the pendency of the original suit and the said objections were dismissed. Thereafter, the lis pendens purchasers made an application being Misc. Case No. 239 of 1954, under Order 21, Rule 100 and Section 151 of the Code of Civil Procedure, praying to be put in possession of the disputed properties and they also made an application, being Misc. Case No-210 of 1954, under Section 151 of the Code of Civil Procedure requesting the Court not to allow the judgment-debtors to withdraw the balance of the sale proceeds.

On 3-11-1956, these two applications, being Misc. Case No. 239 of 1954, and Misc. Case No. 210 of 1954 were dismissed for default after the petition for adjournment by them was rejected. Thereupon, the lis pendens purchasers made ap-plications before the learned Munsif, being Misc. Cases Nos. 326 and 327 of 1956 under Order 9, Rule 9 read with Section 151 of the Civil Procedure Code, for restoration of the said two cases which were dismissed for default, on grounds mentioned in their petitions. By an order dated 21-8-1957, both the said Misc. Cases Nos. 210 and 239 of 1956 were restored by the learned Munsif. It is against this last order of the learned Munsif restoring the said Miscellaneous cases that the present revision petitions were filed.

3. The main questions for consideration in this matter are whether Order 9, Rule 9 of the Civil Procedure Code applies to proceedings instituted under Order 21, Rule 100, C. P. C. and whether the Court has inherent power under Section 151 of the Civil Procedure Code to set aside the order of dismissal for default, on sufficient cause being shown. The learned Counsel for the petitioner before me argued that in the present case the opposite parties had their alternative remedy by way of a suit under Order 21, Rule 103. He contended that the Court has no inherent power to set aside its own order and interfere in any case in which the Court thinks a failure of justice has occurred, when the aggrieved party has another remedy by which it can be set aside, even though the remedy is not as summary or as cheap. In support of this view the learned Counsel for the petitioner cited before me a Full Bench decision of the Madras High Court, Allagasundaram Pillai v. Pichuvier, AIR 1929 Mad 757 (A).

In that case, their Lordships, while appreciating the position that there is a conflict of authorities on the question, came to conclusion and held that prima facie the Legislature intended that proceedings under Order 21, Rule 97 or 100 should be regarded as included under the word 'execution' and that proceedings under Rules 97 and 100 follow as sequel on the execution of the decree (using the word 'execution' in its stricter sense) and on the Court-sale and further that the legislature has enacted that such proceedings shall be regarded in law as part of the execution proceedings. They also held that it is obvious that S, 141 of the Civil Procedure Codedoes not apply to such proceedings under Order 21 as are not also proceedings under Section 47 and, therefore, Order 9 does not apply to such proceedings under Order 21, Rule 97 or 100 as do not also fall within Section 47.

4. The Madras Full Bench decision that Order 9 does not apply to execution proceedings, was based on a decision of the Privy Council Thakur Pershad v. Sheikh Fokirullah, 22 Ind App 44-, (B) and is now settled law. But the Madras. view on Section 151, C. P. C. that the Court has no-inherent power to restore an application under Order 21, Rule 100 dismissed for non-prosecution, has not been followed in some of the later decisions. In fact, the other High Courts have expressed, the contrary view holding that the Court has inherent power under Section 151, C. P. C. even where there is an alternative remedy open to the petitioner, if the ends of justice so require.

In a decision of the Patna High Court Bhi-khan Gir Gossain v. Jalpadat Jha, AIR 1921 Pat 293 (2) (C), Mr. Justice Jwala Prasad following a decision of the Calcutta High Court Bharat Chandra Nath v. Yasin Sarkar, 21 Cal WN 769: (AIR 1917 Cal 31) (D). (Flethoher and Richardson JJ.) held that the Court had inherent power to set aside an ex parte order passed by the-Court under Order 21, Rule 90 although it was an application in execution of the decree, In another Patna case Mt. Kabutri v. Ram Prasad Sahu, AIR 1934 Pat 683 (E) , cited before me by the learned Counsel for the opposite parties, the Patna High Court upheld the view that the Court should have acted under Section 151, C. P. C., which emphasises the fact that nothing in the Code prevents the Court from passing such order as may be necessary to meet the-ends of justice.

In a more recent decision of the Nagpur High Court, Pratapsingh v. Ambadas, (S) AIR 1955 Nag-297 (F), it was held that even though the provisions of Order 9 do not apply to execution proceedings, the executing Court in exercise of its inherent powers under Section 151, C. P. C., can restore applications, dismissed for default, or set aside ex parte order. In that case, it was an application under Order 21, Rule 58 which had been dismissed for default. The mere circumstance that an-alternative remedy may be open to the decree-holder should not prevent the Court from exercising its inherent jurisdiction if the circumstances of the case require its exercise. When a proper case is made, the ends of justice may require that the injury resulting from and order of dismissal for default should be remedied without unnecessary delay, expense or inconvenience.

The Allahabad High Court also expressed the same view. In Mst Ram Dulari v. B. Udai-bhan Pratap Singh, AIR 1954 All 98 (G), it was held that in an appropriate case e.g. where the Court, in ignorance of the fact that notice of the date of hearing was not actually served on the decree-holder or his agent, dismissed the execution for default, the High Court held that it had inherent jurisdiction to restore the application even though fresh application is barred. So also the Calcutta High Court in Radha Kissan v. Keshardeo, AIR 1946 Cal 488 (H), expressed the view to the effect that although the provisions of Order 9 do not apply to execution proceedings, yet the Court is not altogether incapable of exercising its inherent power in regard to the restoration of the execution petitions dismissed for default. Mr. Justice B. K. Mukerjee, delivering the judgment, observed as follows :

'In view of the express provisions of Section 151, we cannot say that the Court is altogether in-capable of exercising its inherent powers in re-gard to the restoration of execution petitions dismissed for default but at the same time we areof opinion that there must be clear justifying necessity for exercising such extraordinary powers and the legitimacy of its exercise must be tested with reference to principles which are wellestablished by authorities. When the Court passes an order of dismissal inadvertently or without being aware of certain facts which ought to have been brought to its notice, it can certainly correct its own error in exercise of its inherent powers,

But there is no justification for the exerciseof such powers where the dismissal was due primarily to the negligence of a party. It has also got to consider whether the other side has or has not justice on his side or has acquired a valuable right under the law of limitation which it may not be just to override. Ordinarily, this Court would not interfere with the exercise of discretionary powers by the Court below, but it may do so if it is satisfied that the lower Court misdirected itself on a material point of law or fact or failed to advert to and consider such matters as are essential for the proper disposal of the case'.

In the light of these decisions and having regard to the weight of authorities holding the contrary view, or it appears to me that the Madras Full Bench view, on which the petitioner in the present application mainly relied, is no longer good law on Section 151 of the Civil Procedure Code.

5. The question, however, remains whether, on the facts of the case, the learned Munsif was right in restoring the said Miscellaneous Cases which were dismissed for non-prosecution. It appears that the petitioners before the lower Court for restoration applied for time on the ground that, one of them, due to his illness at Gaya, could not summon his witnesses and consequently was not ready for hearing. The petitions for time were rejected, as none responded on their behalf when the cases were called for hearing. The ground for restoration was that their Advo-cate was engaged in a Criminal Court and that their Mohurrir and friend went to call him with the permission of the Court and as they could not find him out, they brought his junior Advocate. But by the time he arrived, the cases were dismissed for default In support of their case for restoration, three witnesses were called. P.W. 1 asserted that he looked after the cases on behalf of the other petitioners.

He further said that he went to Gaya for offering Pinda and as he was suffering from fever he sent news to the members of his family to in-form the said Mohurrir that he could pray for adjournment. P. W. 2 the Mohurrir himself said in evidence that upon being informed of illness of P.W. 1 he had applied for time and went in search of the Advocate after informing the Pes-kar. He did not find the advocate and so brought his junior. But by the time he arrived, the cases were already dismissed. P.W. 3 supported the version of P. W. 2. The learned Munsif in his judgment fully considered this aspect of the case and he was satisfied that there was sufficient ground for restoration of the cases. In view of my finding as aforesaid that the Court has inherent jurisdiction to restore such cases dismissed for non-prosecution in exercise of its power under Section 151, C. P. C., I should not interfere with the lower Court's finding of fact that there was sufficient cause for such restoration.

6. The result, therefore, is that these revision petitions C. R. 212 and 213 of 1957 are dismissed with costs. Hearing fee Rs. 100/-.


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