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Nemi Chand and ors. Vs. Umed Mal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Ex. Second Appeal No. 75 of 1959
Judge
Reported inAIR1962Raj107
ActsCode of Civil Procedure (CPC) , 1908 - Sections 141 and 151 - Order 9, Rule 9 - Order 21, Rule 57
AppellantNemi Chand and ors.
RespondentUmed Mal
Appellant Advocate Hasti Mal, Adv.
Respondent Advocate L.M. Singhvi, Adv.
DispositionAppeal dismissed
Cases ReferredKeshardeo v. Radha Kissan
Excerpt:
.....settled that order 9 rule 9, c. it cannot be applied to the case like the present one where the execution application was dismissed under order 21 rule 57. although the execution court did not specify the precise provision under which the execution application was dismissed but for the purposes of present appeal it will be assumed that the application was dismissed under order 21 rule 57 c. hasti mal is obviously opposed to well-accepted notions about the binding nature of the precedents. it will be pertinent to observe that the supreme court bad an occasion to consider the question in keshardeo v. the subordinate judge ordered restoration of the execution observing 'that he had himself made a sad mistake in dismissing it at the same time that he dismissed the adjournment application..........was presented on 18-2-1948 admittedly within the period of limitation then in force in marwar. the execution application had a chequered career and did not yield any result for a number of years. it was dismissed in default on 6-2-1956 in the absence of the decree-holder and his advocate and in the presence of the advocate for the judgment-debtor bhikamchand. the decree-holder put an application on 9-2-1956, for restoration of application for execution. after notice to the respondent-judgment-debtor bhikamchand the application was restored on 26-4-1956. subsequently in the execution proceedings the property of the judgment-debtor was sold a few times but for one reason or the other the sale had to be set aside.on 29-12-1958 a fresh sale-proclamation for the sale of the house of the.....
Judgment:

L.N. Chhangani, J.

1. This second appeal by the judgment-debtors has been directed against the judgment and order of the Civil Judge, Sojat dated 20-7-1959, dismissing the appellants' appeal and maintaining the dismissal of their objections.

2. The respondent obtained a decree against the appellants for an amount of Rs. 1,339-8-0 with costs and future interest on 30th November, 1942. An application for execution was presented on 18-2-1948 admittedly within the period of limitation then in force in Marwar. The execution application had a chequered career and did not yield any result for a number of years. It was dismissed in default on 6-2-1956 in the absence of the decree-holder and his Advocate and in the presence of the Advocate for the judgment-debtor Bhikamchand. The decree-holder put an application on 9-2-1956, for restoration of application for execution. After notice to the respondent-judgment-debtor Bhikamchand the application was restored on 26-4-1956. Subsequently in the execution proceedings the property of the judgment-debtor was sold a few times but for one reason or the other the sale had to be set aside.

On 29-12-1958 a fresh sale-proclamation for the sale of the house of the judgment-debtor for the third time was published stating that the house of the judgment-debtors would be auctioned on 18th, 19th and 20th January, 1959 between 4 p.m. and 6 p.m. and that the sale would be knocked down at 6 p.m. on 20-1-1939. On the last mentioned date the highest bid of Rs. 1,400/- was accepted by the officer conducting the sale who even accepted a deposit of Rs. 350/- from the auction-purchaser. On 24-1-1959 the execution court, however, did not accept the last bid received on 24th, and directed a re-sale to be conducted on 26-1-1959. No higher bid was received on 26-1-59 and on 2nd February, 1959 the execution court passed an order requiring the previous higher bidder to deposit the price and fixed up 28-2-59 for confirmation of the sale.

On 23-2-1959 the judgment-debtors presented an objection petition. They made a grievance over the non-service of notices under Order 21, Rules ,22 and 66, C. P. C. and pointed cut irregularities in connection with the various sales including the last one conducted on 20-1-1959 and prayed for setting aside the sale. Their main objection however was that the execution application having been dismissed in default on 6-2-59, the execution court had no jurisdiction to restore the sale. According to them, the order restoring the execution case being without jurisdiction was ineffective and inoperative and all subsequent proceedings were null and void.

It was pointed cut that on 26-4-56 a period of more than twelve years having elapsed the decree should not be executed on the basis and strength of the restoration order. They, therefore, prayed for the dismissal of the petition, setting aside the sale and releasing the property from attachment. On 28-2-59 the sale was not confirmed. The auction-purchaser had not deposited the price. The court ordered a fresh sale. As the judgment-debtors appeared and put objections the court did not deem it necessary to issue fresh notices under Order 21 Rule 66 C. P. C. The execution court on 4-4-1958 after hearing the arguments recorded a brief order dismissing the objection. The application for execution filed on 18-2-48 was found within limitation under the Marwar law then in force.

The contention which has been pressed in this court with great strenuousness that the restoration order dated 26-4-56 should be ignored and the decree should not be allowed to be executed after the expiry of twelve years from the date of the decree, does not appear to have been pressed before the execution court and the execution court recorded no express decision on it. The execution court further observing that ''the reply of notice under Order 21 Rule 66 C. P. C. was also filed there remains nothing'', dismissed the objection. The judgment-debtors filed an appeal which was dismissed by the Civil Judge, Sojat on 20-3-59. Hence this second appeal by the judgment-debtors.

3. Mr. Hasti Mal's main submission is that the execution court had no jurisdiction to restore the execution case in the exercise of inherent powers under Section 151 C. P. C. and, therefore, all subsequent proceedings are null and void and that the execution application deserves rejection and should not be allowed to continue. The Civil Procedure Code admittedly contains no express provision for the restoration of the execution cases dismissed in default or for re-hearing of the execution matters heard ex parte. There is a divergence of judicial opinion whether the provisions of Order 9 C. P. C. can be extended to execution cases with the help of Section 141 C. P. C. but so far as this court is concerned it is now well settled that Order 9 Rule 9, C. P. C. cannot be extended to execution cases with the help of Section 141 C. P. C. and that Section 151 C. P. C. can be and should be invoked in execution case in appropriate cases.

Mr. Hastimal found it difficult to controvert the position stated above. He, however, urged that Section 151 can be invoked only to execution applications dismissed in default under Section 151 C. P. C. It cannot be applied to the case like the present one where the execution application was dismissed under Order 21 Rule 57. Although the execution Court did not specify the precise provision under which the execution application was dismissed but for the purposes of present appeal it will be assumed that the application was dismissed under Order 21 Rule 57 C. P. C. He placed great reliance upon the decision of this court in Khemchand v. Niranjan Lal, ILR (1953) 3 Raj 267: (AIR 1954 Raj 15). The actual decision in that case was that the dismissal of execution application for default of appearance in cases not covered by Order 21 Rule 57 C. P. C. can only be considered as dismissal under Section 151 and that in such a case the court has also inherent powers to restore the application under the same section.

As the learned Judges recorded a finding that the dismissal of the application in default was not under Order 21 Rule 57 Mr. Hasti Mal wants me to infer that the learned Judges had impliedly accepted the position that Section 151 could not be invoked for the restoration of execution applications dismissed under Order 21 Rule 57 C. P. C. A perusal of the judgment shows that the learned Judges did not discuss or decide the applicability of Section 151 to the restoration of applications dismissed in default under Order 21 Rule 57 and it is hardly fair to treat the above decision as an authority for the proposition contended for by Mr. Hasti Mal. The suggestion of Mr. Hasti Mal is obviously opposed to well-accepted notions about the binding nature of the precedents. The argument of Mr. Hasti Mal deserved mention simply to be refected.

It will be pertinent to observe that the Supreme Court bad an occasion to consider the question in Keshardeo v. Radha Kissan, AIR 1953 SC 23. In that case the decree-holder had applied for adjournment and the application for adjournment having been rejected the execution application itself was dismissed in default. The Subordinate Judge ordered restoration of the execution observing 'that he had himself made a sad mistake in dismissing it at the same time that he dismissed the adjournment application without informing the decree-holder's counsel that the request for adjournment had been refused and without calling upon him to state what he wanted done in the matter in those circumstances''.

In upholding the order of the restoration, their Lordships of the Supreme Court observed as follows:

'As the Subordinate Judge was correcting his own error in the exercise of his inherent powers, it was not necessary for him to investigate into the correctness of the various allegations and counter allegations made by the parties. He was the best Judge of the procedure that was usually adopted in his Court ..........'

These observations clearly indicate that the Subordinate Court's discretion in the matter of invoking Section 151 is quite wide and that it should not be unduly restricted. I do not see any good reason why Section 151 should be limited to cases other than those where the applications are dismissed under Order 21 Rule 57. The courts have wide discretionary powers and they have to be exercised according to the exigencies of the particular cases and I feel no justification to exclude the applicability of Section 151 for restoration of applications for execution dismissed under Order 21, Rule 57. In my opinion, the execution-court was within its competence in restoring the application for execution. The contention of Mr. Hasti Mal on this point has no force and cannot be accepted.

4. There is yet one more consideration on which this appeal should fail. Obviously the judgment-debtors challenged the order of the execution court passed on 26-4-56 restoring the execution application in an appeal from subsequent order in the execution case. This cannot be permitted in law. It must be pointed out that an application for restoration of a case dismissed in default or for re-hearing of a case heard ex parte gives rise to independent collateral proceedings which terminate on the disposal of the application. The order rejecting an application for restoration has been made appealable under Order 43. An order granting an application revives the original proceedings. The order however is not appealable although it can be revised in appropriate cases.

Evidently the validity of the order of restoration cannot be permitted to be challenged in subsequent proceedings of the original case or in appeals from orders passed during subsequent proceedings. The reasons are obvious. The order of restoration cannot be said to have been passed in those proceedings. Even if the order is deemed to have been passed in those proceedings the order does not affect the subsequent decisions on merits as the order of restoration simply ensures a fresh hearing on merits. I have no doubt that the order restoring the case could have been challenged in a revision in view of the independent and original nature of the restoration proceedings and, it is not open to the appellants to contend that they having had no right to challenge it in revision they are in a position to challenge its correctness in an appeal from a subsequent order passed in the course of execution proceedings.

It will be relevant to point out in this connection that one of the judgment-debtors Bhikamchand had notice of the restoration proceedings and of subsequent restoration. He apparently remained satisfied with the restoration order and did not challenge it by means of revision application. The other judgment-debtors assuming that they had no notice of the restoration order also did not care to directly challenge that order by filing a revision application against that order. They put an application only to the execution court on 23-2-59 assailing the correctness of the order of restoration and that too in a light hearted manner, if I may say so. In these circumstances, I do not feel at all persuaded to examine the validity of the restoration order in this appeal. The order of restoration under Section 151 was not appealable and the appellants cannot claim a right of appeal in this indirect manner.

I am also not prepared to consider the validity of the order of restoration in the exercise of the revisional, powers at this stage. It is not a case of inherent lack of jurisdiction. It cannot be disputed that the execution court had the jurisdiction to consider the question of restoration and at best it can be said to be a case of an erroneous decision restoring the case. This by itself does not justify an interference in the exercise of revisional jurisdiction at this stage in the facts and file circumstances of this case. The main contention of Mr. Hasti Mal consequently fails.

As regards the other grievances, I need only observe that the sale has been set aside and the property will have to be re-sold; the judgment-debtors had already put an appearance; the absence of proper notices under Order 21 Rule 22 or Order 21, Rule 66 Civil Procedure Code are of no consequence at this stage and the judgment-debtors can have no grievance in the further continuance of the execution proceedings. I am sure that the execution court will give all reasonable facilities to the judgment-debtors in connection with the proper drawing up of the sale proclamation and in the proper conduct and publication of the sale.

5. In these circumstances, the present appeal is absolutely without force and is hereby dismissed with costs.

6. Mr. Hasti Mal prays for leave to appealunder Section 18 of the Rajasthan High Court Ordinance.I see no grounds to grant leave to appeal. Theprayer is consequently rejected.


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