1. This is a revision application under Section 115, Civil P. C. by Khemchand andothers against Niranjanlal and others which hasbeen directed against an order of the District Judge, Alwar, of 19-4-1949. The facts of the case are that Khemchand and others held a decree against Swami Lakshminarain and others of the date of 2-8-1928 for Rs. 17,400/- with future interest at the rate of five annas per cent, per month payable in instalments. The last execution application was filed by the decree-holders on9-1-1942 for the recovery of Rs. 2996/- and it was prayed that this amount be collected by transferof the proprietary interests of the judgment-debtors in their lands. 25-2-1948 was fixed for consideration of certain objections filed by the judgment-debtors and for receiving their evidence. On that date the case could not be taken up as a holiday was declared by the Government. The District Judge took up the case on the next date i.e., 2S-2-1948. The judgment-debtors were present but the decree-holders failed to appear. The District Judge, therefore, dismissed the execution application stating that it should be deemed to have been dismissed for non-satisfaction of the decree. An application was filed by the decree-'holders on the same day in which it was stated that they had been waiting outside the Court throughout the day and that their case had not been called out. They prayed for giving them information as to what was done in their case. The District Judge, after taking a report from his office, informed the decree-holders that their case had been dismissed and non-satisfaction had been entered on the decree. They then filed an application on 19-3-1948 for setting aside the order of dismissal. After a long enquiry the learned District Judge dismissed the application of the decree-holders on 19-4-1949 against which order the decree-holders have come here.
2. The learned District Judge has remarked in his order of 19-4-1949 that the dismissal order should be treated to have been made under Order 21 Rule 57, Civil P. C. as there was no other procedure in Order 21 relating to dismissal of execution applications for default. There being no rules of procedure in the Civil Procedure Code for restoration of the dismissal of applications under Order 21, Rule 57. Civil P, C. the learned District Judge felt that he could not restore the execution application in the present case.
3. It has been contended on behalf of the petitioner that in exercise of its inherent powers a Court executing a decree could dismiss an execution application for default and at the same time it could restore such an application on its original number. In support of this argument cases of --- 'Harisingh v. Bulaqimal & Sons', AIR 1930 Lah 20 (A); -- 'Abdul Karim v. Ramsingh', AIR 1924 Lah 350 (B) and -- 'Attarsingh v. Bur Singh', AIR 1926 Lah 534 (2) (C), have been cited. In ---'Harisingh v. Bulaqimal & Sons (A)', Zafar AH J. has observed that:
'The Code of Civil Procedure is not exhaustive and this being so the Court may where the circumstances require it act 'ex debito justitiae and do what is necessary for the administration of justice..........Where an application forexecution is dismissed for default in the absence of the judgment-debtor it can be restored without notice to him, and where the judgment-debtor has not even been served with the notice of the date fixed for his attendance in the Court, he is not entitled to receive notice of the decree-holder's application for restoration.'
The cases of --- 'Abdul Karim v. Ramsingh (B)' and --- 'Attarsingh v. Bur Singh (C)1, also contain similar observations.
4. Oa behalf of the other side, reliance has been put on -- 'Ramaraghavareddi v. Raja of Venkatagiri', AIR 1927 Mad 355 (D), in which it has been held that an application for execution dismissed for default cannot be restored on its original number under the inherent powers of the Court under Section 151, Civil P. O.
5. In -- 'Keshardeo Chamria v. Radhakissen Chamria', AIR 1953 SC 23 (E), it has been observed by their Lordships of the Supreme Court, that:
'It is quite clear that the interests of Justicedemanded that the decree-holder's pleadershould have been informed that his request foradjournment had been refused, and furthergiven opportunity to state what he wanted, donein that situation. It was wholly unnecessary insuch circumstances to speculate what thepleader would have done when faced with thatsituation. The solid fact remains that he wasnot given that opportunity and that being so,the order dismissing the execution was bad andwas rightly corrected by the Court on its owninitiative in the exercise of its inherent powers.'
In view of the aforesaid observations of theSupreme Court the decision of the Madras HighCourt referred to above does not appear to laydown good law.
6. The order of dismissal for default of the execution application cannot be regarded in the present case as one under Order 21 Rule 57, Civil P. O. because no attachment of property had been made by the Court executing the decree. Such an order of dismissal for default should be treated to be under Section 151, Civil P. C. and in our opinion the Court has power to restore the case to its original number under Section 151, Civil P. O. We are fortified in this respect by the observations of their Lordships of the Supreme Court quoted above.
7. The learned District Judge was therefore wrong in thinking that he had no power to restore the execution application on its original number when it was apparent that the dismissal of the execution application had been made in the absence of the decree-holder and when it could not have been otherwise, than a dismissal for default under Section 151, Civil P. C. The learned District Judge had, therefore, in exercise of his inherent powers under Section 151, Civil P. C. authority to restore the case.
8. This revision application is, therefore,allowed and the order of the lower Court is setaside and the case is remanded to that Court fordecision of the restoration application on itsmerits. The costs of this revision shall abide theresult in the Court below.