S.K.M. Lodha, J.
1. This revision has been preferred by Mangilal, Basant Kumar and Shantilal who are sons of Bhanwarlal (employer) and opposite party No. 1 before the Workmen's Compensation Commissioner, Udaipur Region, Udaipur and is directed against the order dated May 5, 1977 passed by the Workmen's Compensation Commissioner, Udaipur Region, Udaipur on an application dated November 3, 1976 under Section 47 Civil Procedure Code.
2. A few facts deserve recall here. One Shri Chunnilal son of Shri 'Paras Ram resident of Nai, Tehsil Girawa, District Udaipur preferred two claims under the Workmen's Compensation Act, 1923 (for short the Act) before the Workmen's Compensation Commissioner, Udaipur Region, Udaipur, who will hereinafter be referred to as the Commissioner on the ground that on July 13, 1972 Smt. Ganeshi wife of Chunnilal applicant No. 1 before the Commissioner) and Kumari Narbada daughter of Chunnilal (applicant No. 2 before the Commissioner) died because of the accident. He filed two claims for compensation against Bhanwarlal (employer) and Ambalal son of Bharaji (Contractor-opposite party No. 2 before the Commissioner) for payment of compensation of Rs. 14,000/- i.e. Rs. 7,000/- on account of the death of Kumari Narbada and Rs. 7,000/- on account of the death of Smt. Ganeshi. This claim was resisted by Shri Bhanwarlal (employer opposite party No. 1) who died on January 17, 1975 There is no dispute regarding the date of his death. It was stated by Bhanwarlal that Smt. Ganeshi and Kumari Narbada were not his workmen under the Act and that they were not in his employment his case further was that the accident did not take place out of and in the course of their employment with him. Ambalal (contractor opposite party No. 2 did not file any reply to contest the claim and an order to proceed ex-parte against him was passed in both the claims on March 9, 1973. The Commissioner consolidated the aforesaid two claims. During the pendency of the proceedings ex-parte Order was made against Bhanwarlal on October 5, 1974. He moved an application for getting this order set aside and on his application, ex parte order was set aside on December 13, 1974. Bhanwarlal as stated above died on January 17, 1975 and the fact of his death was not brought to the notice of the Commissioner by any of the parties to the claim. The Commissioner, as Bhanwarlal did not appear, again proceeded ex-parte against him on February 16, 1975. After, this, the advocate for Bhanwarlal submitted an application on March 3, 1975 for setting aside the above order dated February 6, 1975. The Commissioner, however, rejected the application on April 14, 1975 The Commissioner gave an ex parte 4 ward (Judgment) in the two consolidated claims of Chunnilal on June 4, 1975 against Bhanwarlal (employer opposite party No. 1) and Ambalal (contractor opposite party No. 2) and awarded a sum of Rs. 14, 000/- (Rs. 7, 000/- in each claim) to the applicant Chunnilal. A notice dated October 4, 1976 was issued by the Tehsildar, Gogunda to the legal representatives of Bhanwarlal The notices were issued to Mangilal, Roshanlal and Basantilal under the Rajasthan Public Demands Recovery Act, 1952 and the Rajasthan Land Revenue Act, 1956 requiring the aforesaid three persons to deposit the amount of Rs. 7039 50 (Rs. 7, 000/- coaapensation & Rs. 39 50 proportionate amount of costs) in the office of the Tehsildar on or before November 4, 1976. It may be mentioned here that Bhanwarlal has Mangilal, Basant Kumar and Shantilal as his sons i.e. the petitioners before me. The notices to Roshanlal were wrongly issued mentioning them as sons of Bhanwarlal. After the receipt of the above notices, the petitioners came to know for the first time regarding the award of Rs. 14,000/- made against their father Bhanwarlal on June 3, 1975. There upon they submitted an application under Section 47, C.P.C. to the Commissioner on November 3, 1976. It was, inter alia, stated in that application that Bhanwarlal (employer opposite party No. 1) had expired on January 17, 1975 and ex-parte awaited was made on June 3, 1975 and, therefore, the award was made against a dead person and as such it was null and void. In support of the fact that Bhanwarlal had died on January 17, 1975 a photostate copy of the entry from the office of the Health Officer of the Mahanagar Palika of Surat and the affidavit of the petitioner Mangilal were submitted. It was mentioned that the award (judgment) dated June 3, 1975 against Bhanwarlal (employer) was a nullity and, therefore, it should be set aside On the application of the petitioners, recovery proceedings were ordered to be stayed by the Commissioner Chunnilal (applicant before the Commissioner) resisted the application submitted by the petitioners under Section 47 C.P.C. dated November 3,1976 by filing a reply dated 31-1977 on various grounds. The Commissioner heard the arguments on the application and dismissed the same by his order dated May 5, 1977 on the ground that such an application was not maintainable in as much as the provisions of the Civil Procedure Code are not applicable.
3. Being aggrieved by the order of dismissal of the application dated May 5, 1977 the petitioners have come up in revision to this Court. The revision application has been filed under Section 115 C.P.C.
4. Mr. A.K. Mathur for Mr. Marudhar Mridul, earned Counsel for the non-petitioner No. 1 Chunnilai, has raised the preliminary objection that revision under Section 115 C.P.C. against the order of the Commissioner is not maintainable. He submitted that except the provisions mentioned in Rule 41 of the Rajasthan Workmen's Compensation Rules, 1960 (hereinafter to be referred as the Rules) the other provisions of C.P.C. are not applicable to the proceedings before the Commissioner and, therefore, Section 115 C.P.C. cannot be invoked by the petitioners. In support of his arguments, he referred in (he matter of compensation for the life of Karim Dad, Planer, Loco-shops, Moghalpura A.I.R. 1930 Lah. 657 to show that the Commissioner exercises power of a court only under certain provisions of the Code and Section 151 C.P.C. not being one of them the Commissioner does not possess any inherent power contemplated by Section 23 of the Act. Mr. Rajendra Mehta on the other had submitted that the Commissioner appointed under Section 20 of the Act is a court subordinate to High Court and so the High Court can revise the orders of the Commissioner. In order to appreciate the preliminary objection raised by Mr. Mathur, it is necessary to consider Section 23 of the Act. Section 23 reads as under:
22. Powers and Procedure of Commissioners: The Commissioner shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (V of 1908), for the purpose of taking evidence on oath (which such Commissioner is hereby empowered to impose) and of enforcing the attendance of witnesses and compelling the production of documents and material objects, (and the Commissioner shall be deemed to be a Civil court for all the purposes of Section 125 and of Chapter XXXV of the Code of Criminal Procedure, 1898 (V of 1898).
Section 30 of the Act provides for hearing of appeals against the orders of the Commissioner. The orders which can form the subject matter of appeal to the High Court have been enumerated in Section 30. In exercise of the powers conferred by Section 32 of the Act the State Government has framed the Rules. Rule 41 provides that certain provisions of the Civil Procedure Code 1908 are to apply to proceedings before the Commissioner. Rule 41 runs as under:
41. Certain provisions of Code of Civil Procedure, 1908 to apply. Save as otherwise expressly provided in the Act or these rules, the following provisions of the First Schedule to the Code of Civil Procedure, 1908 namely those contained in Order V Rules 9 to 13 and 15 to 30; Order IX, Order XIII; Rules 3 to 10, XXIII, Rules 1 and 2, shall apply to proceedings before the Commissioner, in so far as they may be applicable thereto.
The question that arises for my consideration at this stage is whether the Commissioner is subject to the jurisdiction of the High Court so far as Section 115 C.P.C. is concerned. There is he doubt that the Act is a complete Act and, only certain provisions of the Civil Procedure Code have been made applicable Under, Section 23 of the Act, the Commissioner possesses all the powers of the Civil Court for the purposes mentioned therein, for example, in regard to taking of evidence, enforcing attendance of witnesses and compelling the production of documents. It is clearly provided in Section 23 that the Commissioner will be deemed to be a civil court for limited purposes It cannot be inferred from Section 23 of the Act that the Commissioner is a court for all purposes as provided under the C.P.C.
5. What I am required to consider is whether Section 115 C.P.C. can be made applicable or not? As stated above under Section 30 of the Act the High Court has power to hear appeals against the orders specified therein. Section 115 C.P.C. empower? 'the High Court to call for the record of any case which has been decided by any court subordinate to such High Court, irrespective of the matters dealt with by it.' In these circumstances, I have no hesitation in holding that on account of the exercise of the powers of a civil court and on account of its being subject to appeal on certain matters, the Commissioner under the Act should be a court subordinate to the High Court so far as Section 115 C.P.C. is concerned. For determining the question whether a court is subordinate to the High Court, the test which, in my opinion, should be applied is that if an appeal from the decision of that court can be preferred to the High Court, then the court is subordinate to the High Court. As stated above, Section 30 of the Act provides for appeals from the decisions of the Commissioner under the Act to the High Court, and therefore, the Commissioner is a court subordinate to the High Court. Similar view was taken in Firm GD Gianchand Perambulatets and Tricycle Manufacturer v. Abdul Hamid A.I.R. 1938 Lah. 855, Abdul Rashid v. Hanuman Oil and Rice Mill A.I.R. 1951 Assam 88 and Mohanlal Prabhuram v. Fine Knitting Mills A.I.R. 1960 Bom. 387. The view taken by the Bombay, Lahore and Assam High Courts, that the Commissioner appointed under the Act is a Court subordinate to the High Court under Section 115 C.P.C. was followed by the Madhya Pradesh High Court in Sk. Amir v. Jardarbag 1970 L.I.C. 1656. The learned Single Judge of the Madhya Pradash High Court in para 15 has observed as under:
I respectfully agree with the view held by Patna, Bombay, Lahore and Assam High Courts, that the Commissioner appointed under the Workmen's Compensation Act is a Court subordinate to the High, Court under Section 115, Civil P.C., I respectfully agree with the reasoning that it is the power to hear appeals that makes the other Court subordinate. The High Court hears appeals, may be to a limited degree but High Court is an appellate Court. The High Court has therefore, power to revise the order of the Commissioner.
I respectfully agree with the view taken by Bombay, Lahore, Assam and Madhya Pradesh High Courts. So far as the case in the matter of compensation for the life of Karim Dad A.I.R. 1930 Lah. 657 on which reliance was placed by Mr. Mathur ii concerned, it is not applicable to the case before me as the question whether the Commissioner appointed under the Act is a Court subordinate to the High Court did not arise in that case. Mr. Mathur during the
course of the dictation of the judgment invited my attention to para 4 of the decision reported in Kalyan Singh v. Dhanna Ram 1977 RLW 35. In that case in para 4 it is written that the application under Order IX Rule 13, CPC was moved before the Commissioner on the ground that no personal service was effected upon him and further substituted service was ordered although condition for issuance of such service did not exist so the same was bad in law. It was prayed in that application that the ex-parte order as well as the award may be set aside and the claim application may be re heard after giving opportunity, the Commissioner dismissed the application Being aggrieved against that order an application designating it as S.B. Civil Revision under Section 115 CPC and in the alternative Civil Writ Petition under Articles 226 and 227 of the Constitution of India was filed. The office raised objection wherein it was demanded from the learned Counsel for the petitioner to state whether the petition was a revision application under Section 115 CPC or a petition under Article 227 of the Constitution It was, accordingly, ordered and the case was registered as a revision application under Section 115 CPC. When the case came up for hearing before the learned Single Judge, a preliminary objection was raised that revision application against the order of the Commissioner was not maintainable. Learned counsel, who appeared for the petitioner, conceded that revision application was not maintainable. Therefore, an application was made that the revision application may be treated as a petition under Article 227 of the Constitution. The learned Single Judge declined to treat the application as one under Article 227 of the Constitution for the reason that no indulgence could be granted as the petitioner and his counsel did not move in the matter in a correct manner although considerable time was allowed to them to take resort to right course. While refusing the prayer for treating the application under article 227, Jain J. took notice of the preliminary objection that there was a remedy by way of appeal prescribed under the Act and the petitioner could have moved claiming benefit of Section 5 of the Limitation Act. In view of the facts and circumstances of that case prayer to treat the application as under Article 227 was declined and the revision application was dismissed. This judgment is not an authority for deciding the preliminary objection raised before me in as nuchas in that on a preltTiinary objection being raised at the time of the hearing learned Counsel conceded that the revision application was not maintainable. The learned Judge had no occasion to examine the question in the light of the relevant provisions of the Act and the case law. No other authority taking a contrary view was brought to my notice by Mr. A.K. Mathur. I therefore, hold that the Commissioner under the Act is a court subordinate to the High Court & his orders can be revised by the High Court provided the conditions laid down under Section 115 CPC are satisfied. The preliminary objection is thus over ruled.
6. The next important question that is involved in this revision is whether the Commissioner under the Act has jurisdiction to recall the award/judgment dated June 3, 1975 which was made against Bhanwar Lal (employer-opposite party No. 1) who was admittedly dead on that day. It has not been disputed before me by the learned Counsel for the non petitioner that Bhanwarlal had died on January 17, 1975. After his death order for proceeding ex-parte against was made on February 6, 1976. His counsel on his own accord moved an application on March 3, 1975 for setting aside the ex-parte order. After the death of Bhanwarlal his power came to an end. No fresh authority from the petitioners is on record showing that he was instructed to file the application for setting aside the ex parte order made on February 6, 1975. That application was, however, rejected by the Commissioner on April 14, 1975. Thereafter the application under Section 47 C.P.C. was made on November 3, 1976 as aforesaid. Mr. A.K. Mathur contended that such an application could not lie either under Section 47 or under Section 151 C.P.C. for these provisions do not find place in Rule 41 of the Rules He also argued that the application under Section 47 Cr.P.C. dated November 3, 1976 is nothing but an application for review of the award/judgment dated June 3, 1975 and as there is no provision for review, the Commissioner had no jurisdiction to entertain and decide the application He has supported this submissions by referring to in the matter of compensation for the lite of Karim Dad, Planer, Loco-shops. Moghalpura A.I.R. 1930 Lah. 657. Further submission of Mr. Mathur is that the legal representatives of Bhanwarlal i.e. the petitioners could prefer appeal against the award/judgment dated June 3, 1975 after becoming aware of it on the receipt of the notices from the Tehsildar, Gogunda and for condo nation of delay they could make an application under Section 5 of the Limitation Act explaining the reasons for not preferring the appeal under Section 30 within the period of limitation. Section 2(e) defines 'employer' and it includes amongst others the legal representatives of deceased employer and therefore, he contended that as employer could prefer appeal under Section 30 his legal representatives could also file appeal challenging the award/judgment dated 3-6-1975.
7. I have given my most anxious and thoughtful consideration to the submissions made in this regard by Mr. Mathur. I am afraid, that they cannot be accepted. As stated by me above the application which was submitted by the petitioners was for recalling she award/judgment dated June 3, 1975 as it was passed against an employer who had died much before the making of the award. In the Sub Divisional Officer Mirzapur v. Raja Sriniwas Prasad Singh : 2SCR970 , the State of U.P. filed two applications before the Compensation Officers at Mirzapur and Chunar praying that the objections cases be re-opened and the State Government be given a hearing. The principal ground on which the State Government prayed for the re opening of the proceedings was that notices of the objections were not issued to the State Government as required by the U.P. Zamindari Abolition and Land Reforms Act, 1950 (Act No. 1 of 1951) and that the State Government, having no knowledge of the objections could not appear and contest the case set up by the Raja. The contention of the State Government was that the final compensation roll was not binding upon it. An objection was raised on behalf of the respondents in that case that the provisions of Order IX and Section 151 C.P.C. under which the decrees which are passed ex-parte are ordinarily set aside do not apply and since the State Government did not appear and contest the objections to the amount of compensation and did no appeal under Section 50 to the District Judge, the final compensation assessments drawn, which were signed and sealed became final under Section 52(1) and (2) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 which cannot now be re opened. It was also contended on behalf of the respondents in that case that there is no provision for review and the State Government not having appealed, the Compensation Officer cannot re-open the proceedings. While dealing with these contentions their Lordship of the Supreme Court observed that the points raised by the respondents that there is no provision of review and that the compensation became final under Section 52 and that the State Government not having appealed the Compensation Officer cannot re-open the proceedings are not quite correct. Here, I am tempted to quote the following from para 12 of the report:
Every court and tribunal is entitled to reopen a proceeding which has proceeded ex-parte, not because a party has failed to appear but because a notice has not been sent to a necessary party. A decision reached behind the back of a necessary party to whom notice must be sent is not binding upon such a party and the court may in such a case re-open the proceeding to give the party a chance to state its case.
It is therefore, clear that the Commissioner possesses the power to reopen the proceedings for the award of compensation under the Act when the Award was made against a dead person.
8. The Commissioner has thus failed to exercise jurisdiction vested in him by law, fir, he has jurisdiction, as held above, to decide the application dated November 3, 1976 on merits. I may also observe that mentioning of wrong provision of Section 47 C.P.C. in the application will not disentitle the petitioners to claim the relief which they have paved for in the application. Mr. Mehta also argued that the award under the Act is a judgment as it tantamounts to a decide and he supported his argument by referring to Smt. Rajiyabai Cosman Sayi and Anr. v. Mackinon Machinazie & Co. Pvt. Ltd. : AIR1970Bom278 wherein it has been held that a Commissioner in adjudicating disputes between the parties under the Act is a court and its decision is a judgment and not an award, an order passed in appeal by the High Court under Section 30 of the Act is a judgment, within the meaning of the Clause 15 of the Letters Patent Rule 32(1) of the Rules provides that the Commissioner shall record in his judgment his findings on each of the issues framed and the reasons for such findings while passing orders. Sub-rule (2) of Rule 32 also makes mention of judgment. Mr. Mehta referred to the decisions reported in M. Subramania Aiyar v. Vaithinatha Aiyar A.I.R. 1916 Mad. 656 to show that a decree passed after the death of a defendant and before the substitution of the legal representatives is null and void. On the basis of the decisions reported in Mahani Chinera v. Mir. Ramjan Ali A.I.R. 1940 Pat. 243, Rimangshu Bhusan Kar and Ors. v. Mahindra Mohan Saha : AIR1954Cal205 and Gurucharan Singh and Ors. v. Gorakhanath Singh and Ors. : AIR1966Pat323 he contended that a judgment and decree against a dead person is a nullity. In the application dated November 3, 1976 the prayer was made that for the reasons mentioned in the application the decree has been passed against a dead person and so it my be declared in executable and void. The Commissioner has dismissed this application on the ground that he has no jurisdiction to entertain and decide that application and did not address himself in respect of its merits. In these circumstances, I am not inclined to examine the application on merits in this revision.
9. For the reasons mentioned above I allow this revision application and set aside the order under revision dated May 5, 1977 passed by the Compensation Commissioner, Udaipur Region, Udaipur and remand the case back to him for deciding the application dated 3, 1976 on merits in accordance with law. In the circumstances of the case there shill be no order as to the costs of this revision.