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Kulwant Kaur Vs. Hazari Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 126 of 1967
Judge
Reported inILR1975Delhi244; 1975RLR24
ActsCode of Civil Procedure (CPC), 1908 - Secton 151
AppellantKulwant Kaur
RespondentHazari Lal and ors.
Advocates: H.S. Dhir and; Gaja Nand, Advs
Cases ReferredIn Ramkarandas Radhavallabh v. Bhagwandas Dwarkadas
Excerpt:
.....order 21 rule 58 -- restoration asked for under inherent powers -- if and when can be invoked : civil procedure code, order 21 rule 58 & 63.; that there are express provisions of law applicable to a particular case, normally the question of use of the inherent powers hardly arises. it would, however, be a different matter if due to mistake of the court an order is passed and on the mistake coming to notice the order is set aside in exercise of inherent powers. in an exceptional case, such as where objections under order 21 rule 58 are dismissed in default due to a mistake of the court, restoring the objections by invoking the inherent powers would not by in any way illegal.; where an order dismissing an objection-petition in default was such that it came within the purview of rule..........16, 1967, the learned subordinate judge dismissed an application under section 151 of the code of civil procedure.(2) during the execution of a money decree obtained by shri hazari lal for his own benefit and the benefit of certain other persons, a bus (no. rj.a. 643) was attached and its possession was given on superdari basis to shri lal singh. later on shri lal singh was required to produce that bus and on his failure to do so another bus (no. dlp-3020), which was alleged to belong to the superdar, was attached with a view to its being sold. in the meantime shri lal singh died and his widow, smt. kulwant kaur, en september 27, 1966, made obiections to the attachment of bus no. dlp-3020. according to her bus no. dlp-3020 belonged to her and was not liable to attachment and sale in.....
Judgment:

Jagjit Singh, J.

(1) This revision is against an order of Shri R. K. SynghaL Subordinate Judge 1st Class, Delhi. By his order dated February 16, 1967, the learned Subordinate Judge dismissed an application under Section 151 of the Code of Civil Procedure.

(2) During the execution of a money decree obtained by Shri Hazari Lal for his own benefit and the benefit of certain other persons, a bus (No. RJ.A. 643) was attached and its possession was given on Superdari basis to Shri Lal Singh. Later on Shri Lal Singh was required to produce that bus and on his failure to do so another bus (No. DLP-3020), which was alleged to belong to the Superdar, was attached with a view to its being sold. In the meantime Shri Lal Singh died and his widow, Smt. Kulwant Kaur, en September 27, 1966, made obiections to the attachment of bus No. DLP-3020. According to her bus No. DLP-3020 belonged to her and was not liable to attachment and sale in execution of the decree that had been obtained by Shri Hazari Lal.

(3) The objection petition of Smt. Kulwant Kaur, under Order 21 Rule 58 of the Code of Civil Procedure, was dismissed in default on November 25, 1966. On December 1, 1966 she applied for restoration of the objections by submitting an application which purported to be under Section 151 of the Code of Civil Procedure. In that application it was slated that she had to personally bring her evidence on November 25, 1966 but as she fell ill on that date so she deputed a person to inform her counsel but that person could not contact the counsel and, thereforee, no one appeared on her behalf. This application was opposed by the decree holder and on February 16, 1967 was dismissed by the executing court after holding that there was no provision for restoration of objections under Order 21 Rule 58 of the Code of Civil Procedure that may be dismissed in default and that the objector could file a suit under provisions of Order 21 Rule 63 of the said Code. It was also remarked that as the aggrieved party had another remedy the provisions of Section 151 of the Code of Civil Procedure could not be invoked. The applic;a,tion for restoration of the objections was, thereforee, dismissed.

(4) Shri Hazari Lal, decree holder, having died the names of his legal representatives have already been directed to be substituted in his place as the respondents. In that connection a controversy had arisen whether the provisions of order Xxii of the Code of Civil Procedure applied to revisions as distinguished from appeals. A Division Bench of this court, to which the question was referred by P. S. Safeer, J' held that provisions of order Xxii 'do not apply to proceedings in revision and article 120 of the Limitation Act, 1963 also does not .apply to such proceedings because proceedings in revision are not original proceedings or proceedings in pari materia with a suit'.

(5) While arguing the revision Shri H. S. Dhir, learned counsel for the petitioner, contended that the Subordinate Judge was wrong in taking the view that Section 151 of the Code of Civil Procedure could not be invoked and, thereforee, failed to exercise jurisdiction vested in him by law. It was submitted that the order dismissing the application for restoration of the objections was lia,blc to be set aside.

(6) The provisions of Order 9 of the Code of Civil Procedure were not applicable for restoration of the objection petion dismissed in default. If an authority may be needed on the point, then reference may be made to Haddu Sahn v. Haii Zamal Noor Mahomed Saheb : AIR1934Mad699 , (1). It was also not disputed that the petitioner could have filed a suit to establish her claim to the property in dispute, as provided by rule 63 or order 21 of the Code of Civil Procedure. The contention raised, however, was that the availability of alternative remedy of filing the suitdid not debar the petitioner from applying for restoration of the objections, under order 21 rule 58 of the Code of Civil Procedure, by invoking the inherent powers of the court. Rule 63 of order 21 of the Code of Civil Procedure is as follows: ''Where a claim or an objection is preferred. the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive'.

(7) It is well established that. an order dismissing a claim or objections under order 21 rule 58 of the Code of Civil Procedure is an adverse order within the purview or rule 63 of order 21 of the Code of Civil Procedure. Undoubtedly, thereforee, the objector could have instituted a suit, under provisions of rule 63 or order 21, to establish the right which she claimed to the property in dispute. That remedy was, however, not availed of by her inspire of the fact that even when the application under section 151 of the Code of Civil Procedure was dismissed, the limitation for filing the ?uit had not expired. The question which, thereforee, arises is as to whether the discretion exercised by the Subordinate Judge in not making use of his inherent powers for restoring the objections amounted to failure to exercise jurisdiction vested in him or amounted to acting in exercise of his jurisdiction illegally or with material irregularity.

(8) Where there are express provisions of law applicable to a particular case, normally the question of use of the inherent powers hardly arises. It would, however, be a different nmatter if due to mistake of the court a,n order is passed and on the mistake coming to notice the order is set aside in exercise of inherent powers.

(9) In Keshardeo Chamria v. Radha Kishen Chamria and others : [1953]4SCR136 , (2), the view taken by the Supreme Court was that where the court had committed a mistake in dismissing an execution case without giving opportunity to the decree holder to take the necessary steps in execution, the court could in exercise of its inherent powers rectify the mistake it had commuted by restoring the case. The Cia,se of Manohar Lal Chopra v. Rai Bahadur Rao Raj Seth Hiralal, : AIR1962SC527 (3), on which reliance was also placed, related to the question of issuing an order of temporary injunction in circumstances not covered by order 39 or by any rules made under the Code of Civil Procedure and in that context it was laid down that a court has inherent jurisdiction to issue temporary injunctions in circuimusances which arc not covered by the provisions of order 39 of the:. Code of Civil Procedure, if the Court is of opinion that the interest of justice requires the issue of such interim injunction.

(10) In Pratapsingh and others v. Arnbadas Balaji Lokhande, A.I.R. 1955 Nag 297, the High Court of Nagpur refused to interfere in revision with an 'order restoring objections under order 21 rule 58 of the Code of Civil Procedure. It was remarked that an order passed in default is as conclusive as the one passed on merits but it is a different questionwhethyer the former order can, on proper cause being shown, be set aside under section 151 of the Code of Civil Procedure. The following extract from the judgment in the case of Dawoo!al v. Kheduprasad. A.T.R. 1949 Nag.160 was referred to with approval :- * 'We are of opinion that an executing Court has inherent powers to dismiss the application for execution and also to restore it to the file under S. 151, Civil P. C., though, save in the most exceptional cases, it ought not to resort to S. 151 Civil P.O., in so far as restoration is conceed.'

(11) Sonic other cases were also cited but it is not necessary to refer to those cases for I am inclined to agree that in an exceptional case, such as where objections under order 21 rule 58 are dismissed in default due to a mistake of the court, restoring the objections by invoking the inherent powers would not be in any way illegal. In the present case, however, there was no mistake, whatsover, of the court executing the decree in dismissing the objection petition on the non-appearance of the objector or her counsel, when the objector had herself undertaken to bring her witnesses. Even though in a proper case inherent powers of the court may be exercised but by no stretch of imagination the instant case was such a one in which resort should have been made to the inherent powers for restoring the objection petition. As the order dismissing the obiection-petition in default was an order which came within the purview or rule 63 of order 21 of the Code of Civil Procedure and there was no mistake, whatsoever on the part of the Subordinate Judge in making the order of dismissal in default, so the case was not such in which inherent powers should have been exercised for restoring the obJcetion petition. The appropriate cause to adopt for the objector was to file a suit under provisions of order 21 rule 63 of the Code of Civil Procedure to establish the right which she claimed to the property under attachment.

(12) In Ramkarandas Radhavallabh v. Bhagwandas Dwarkadas : [1965]2SCR186 (5) their Lordships of the Supreme Court, following the case of Manohar Lal (supra) (3) observed that inherent powers are to be exercised by the court in very exceptional circumstances for which no procedure has been laid down. In that case while, dealing with the question of setting aside a decree under order Xxxii of the Code of Civil Procedure it w/a,s also observed that rule 4 of order xxxvii expressly gives power to the court to set aside P decree passed under the provisions of order xxxvii and thus expiess provisions having been made for setting aside a decree under order xxxvii, if a case does not come within the provisions of that rule, there is no scope to resort to Section 151 of the Code of Civil Procedure for setting aside such a decree.

(13) The order of the learned Subordinate Judge in substance meant that the case was not such which may justify invoking inherent powers for restoring the objection petition dismissed in default. It seems to me that the order of the Subordinate Judge does not imply that possibly there cannot be any case where resort to the inherent powers would not be appropriate and in the interest of justice.

(14) The order of the learned Subordinate Judge was in my opinion legal and in making it he neither failed to exercise the jurisdiction vested in him nor acted in exercise of his jurisdiction illegally or with material irregularity. The nature of the case was not such which may have called for exercise of inherent powers in restoring the objection petition dismissed in default. The petitioner ought to have institute a, suit as provided by rule 63 of order 21 of the Code of Civil Procedure. There was limitation for filing the suit even when the application for restoration of the objection petitioner was dismissed. If inspire of that the petitioner persisted in not filing such A a suit then for the consequences which have ensued, she has to Dime herself. There being no merit in the revision petition, it is dismissed with costs.


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