1. This is a revision against the order of the Subordinate Judge of Puri, passed in exercise of his inherent powers, under Section 151, C. P. C. restoring an application under Order 21, Rule 2, of the Civil Procedure Code, which had been previously dismissed for default.
2. The opposite party had obtained a decree for declaration of title and recovery of possession of house property worth Rs. 5000/- and also for recovery of damages amounting to Rs. 1000/- against two defendants, the present petitioner being defendant No. 2 (judgment-debtor No. 2). The decree was put into execution, in due course, and then defendant No. 2 filed a petition on 124-1962 purporting to be one under Order 21, Rule 2 of the Civil Procedure Code alleging that the decree-holder had received Rs. 5000/- from him, (undertaking to close the execution case) and requesting the Court to enter full satisfaction of the decree. The learned Subordinate Judge thereafter started a Misc. Case. (Miscellaneous Case No. 70 of 1962) and, on 21-7-1962 when the present petitioner took no steps and did not appear before the Court he dismissed that case for non-prosecution. His order is thus tantamount to one of dismissal for default. Defendant No. 2 then applied under Section 151, C. P. C. for restoration of the miscellaneous case, and the learned lower Court after examining witnesses on his behalf to show that there was sufficient cause for his non-appearance, directed the restoration of Miscellaneous Case No. 70 of 1962, observing that in exercising his inherent powers under Section 151, C. P. C. the application could be restored.
3. Mr. S. K. Ray appearing for defendant No. 2 urged that the Court had no jurisdiction to exercise its inherent powers in the circumstances of this case, because if the order of the Subordinate Judge dated 21-7-1962 dismissing the case for non-prosecution be construed as a decision or) merits, an aggrieved party had a right of appeal as it would amount to an order under Section 47, C. P. C. Alternatively if it be held that Section 47, C. P. C. will not be applicable it would be open to defendant No. 2 to file an independent suit to establish that there was a compromise between the decree-holder and the judgment-debtor, and ask for consequential reliefs. Hence, according to Mr. Ray, in any view of the case, the petitioner (defendant No. 2) had an alternative remedy and the Court should not have exercised its inherent powers under Section 151, C. P. C.
4. Before discussing the case law on the subject, I must dispose of the preliminary contentions raised by Mr. Ray. Firstly an application purporting to be one under Order 21, Rule 2, C. P. C. must be held to be an application in execution proceedings as the whole of Order 21, C. P. C. has been placed under the heading 'Execution of Decrees and Orders'. If a dispute had been raised by the decree-holder challenging the satisfaction of the decree as alleged by the petitioner, that would necessarily be a dispute regarding satisfaction of the decree and any final order passed by the executing Court would be an order under Section 47, C.P.C. and would be appealable. The judgment-debtor cannot possibly have an independent right of suit. Again, if an application under Order 21, Rule 2, C. P. C. is dismissed for default and no final decision is given on merits, Section 47, C. P. C. cannot possibly be attracted because the very definition of the expression 'decree' in Section 2(2) of C. P. C. excludes an order of dismissal for default. Thus, the petitioner had clearly no alternative remedy against the order of the Subordinate Judge dated 21-7-1962 and hence he invoked his inherent jurisdiction under Section 151, C. P. C.
5. There are two single judge decisions of this Courtwhich appear to have taken somewhat conflicting views asto how far Section 151, C. P. C. can be invoked for restoring an application in an execution proceeding dismissed fordefault.' It is true that Order 9, Rule 9, C. P. C. doesnot in term apply to such execution proceedings, but it waspointed out in Gour Nag Bhusan v. Ananta Sendh, ILR (1958)Cut 351 : (AIR 1958 Orissa 200) following Radha Kissanv. Keshar Deo, AIR 1946 Cal 488 and disagreeing with theFull Bench decision of the Madras High Court in Alagasundaram Pillai v. Pichuvier, AIR 1929 Mad 757 (FB), that theinherent power of the Court may be exercised in respectof application for restoration of petitions dismissed fordefault. In a later single Bench decision of the Court reported in Prafulla Chandra v. Govinda Prasad, 1959 O.J.D.331, however, the aforesaid Full Bench decision of theHigh Court was followed and it was held that the inherentpowers should not be invoked for restoration of an application under Order 21, Rule 2, C. P. C. dismissed for default -- two years after the passing of such an order of dismissal, especially when there was an alternative remedy opento the party.
6. There are also conflicting views of other High Courts as to whether the inherent powers can be invoked where there are alternative remedies provided in the Civil Procedure Code itself, the general view being that where an alternative remedy is provided the inherent powers of the Courts should not be invoked.
7. But the recent decision of the Supreme Court in Bangalore Woollen, Cotton and Silk Mills Co. Ltd. v. Corporation of the City of Bangalore, AIR 1962 SC 527 seems to have laid down a slightly different view so far as the scope of Section 151, C. P. C. is concerned. Their Lordships, by a majority, held that as expressly stated in Section 151, C. P. C. itself the inherent powers of the Court are not in any way controlled by the provisions of the Civil Procedure Code. The principle that those powers should not be exercised when they come into conflict with the express provisions of the Code is not based on the view that the inherent powers are in any way controlled by those provisions
'but because it should be presumed that the procedure specifically provided by the Legislature for orders in certain circumstances is dictated by the interests of justice'.
In other words, if there are express provisions in the Code, it may be presumed that they were meant to further the ends of justice, and, consequently, for all practical purposes, the inherent powers cannot be invoked against those provisions because those powers themselves are required to be invoked for the ends of justice. Their Lordships further reiterated thfs view in paragraph 23 (at page 533) in the following terms:
'The section itself (referring to Section 151) says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement it is not possible to hold that the provisions of the Code control the inherent power, by limiting it or otherwise affecting it. The inherent power has not been conferred on the Court, but it is a power inherent in the Court by virtue of its duty to do justice between the parties before it.'
The aforesaid observations seem to lay down the rule that in very very exceptional circumstances the Court may exercise its inherent power even though there may be an alternative remedy provided in the Code, or where such exercise of power may conflict with the express provision of the Code though for all practical purposes such conflict should be avoided. The only restriction laid down by their Lordships was that the inherent power should be used for procedural matters only, and not where substantive rights of parties are likely to be affected -- see para 22 at page 533 of the aforesaid decision. Their Lordships of the Supreme Court distinguished their own previous decision in Padam Sen v. State of Uttar Pradesh, AIR 1961 SC 218 on the ground. It is true that one of the learned Judges (Shah J.) was not prepared to go so far and took a dissentient view to the effect that the inherent power under Section 151, C. P. C. cannot be exercised in such a way as to nullify the provisions of the Code, and where the Code expressly deals with a particular matter that provision should normally be regarded as exhaustive. But we are bound by the decision of the majority. Reference may also be made to a Division Bench decision of this Court, reported in Ananda Chandra v. Judhisthir Jena, ILR (1963) Cut 24.
8. Following the aforesaid decision, therefore, even it be said, for the sake of argument, that the petitioner had an alternative remedy, nevertheless the Court had jurisdiction to restore the application under Order 21, Rule 2, C. P. C. which had been dismissed for default. To that extent the view taken in the single Judge decision of this Court in ILR (1958) Cut 351 : (AIR 1958 Orissa 200), should be taken as correct, and not the later view taken in 1959 O.J.D. 331. But I have already shown that the petitioner had no alternative remedy either by way of an appeal against an order under Section 47, C. P. C. or by way of Independent suit. We are therefore satisfied that the lower Court exercised its jurisdiction properly in restoring the application after directing payment of costs to the petitioner by way of compensating him for the harassment caused to him.
9. In view of the pronouncement of the Supreme Court in the case cited above, we think it unnecessary to discuss the conflicting views of the various High Courts on this question.
10. The Civil Revision is dismissed but both parties will bear their own costs of this revision.
11. I agree.