1. This is a Civil Revision Petition under Section 115, Act V of 1908 and Section 107, Government of India Act.
2. Petitioner applied under Order 9, Rule 9 to restore his petition for setting aside an execution sale which had been previously dismissed for default. The lower Court has dismissed the application on the ground that such an application does not lie against orders in execution proceedings following Bhubaneswar Prasad Singh v. Tilakdhari Lal (1918) 4 Pat LJ 135. Hence this petition.
3. The Patna Bench has ruled in terms that Order 9, Rule 9 does not apply, and the question is whether this ruling should be followed with special reference to Subbiah Naicker v Ramanathan Chettiar I.L.R. (1914) M 462 : 26 MLJ 189 the Madras ruling to the contrary. In the Madras ruling at p. 475, the following passage occurs: 'It is contended that O.9, Rule 13,Civil Procedure Code, does not apply to ex parte orders passed in execution but only to ex parte decrees in suits. We think that that argument cannot be accepted. Orders in execution which come under Section 47, Civil Procedure Code, are decrees as defined in Section 2 of the Code and hence ex parte orders passed in execution are ex parte decrees. Order 9, Rule 13 provides generally for the setting aside of ex parte decrees and not only for the setting aside of those classes of ex parte decrees which are not also orders passed under Section 47 in execution proceedings.
4. This line of reasoning is traversed in Chidambaram Chetty v. Theivanai Ammal I.L.R. (1923) M 768 : 45 MLJ 346. 'It is now pointed out with some force that although this may justify the application of Article 164 (Indian Limitation Act) it is no answer to the consideration that the whole order including Rule 13 is applicable in terms only to suits and therefore it is to be inferred to the description of decrees passed in them.' I agree and I think this criticism warrants the observation in the Patna Case that Subbiah Naicker v. Ramanathan Chettiar : AIR1914Mad162 does not rest upon a sure foundation (page 139). Oldfield, J., in his referring judgment in Chidambaram Chetty v. Theivanai Ammal I.L.R. (1923) M 768 : 45 MLJ 346, quoted above, proceeds that a better foundation for the ruling in Subbiah Naicker v. Ramanathan Chettiar : AIR1914Mad162 would be the plain and unrestricted terms of Section 141, Civil Procedure Code. This refers to the argument that under Section 141 the procedure in regard to suits is made applicable to all proceedings, and therefore Order 9 is applicable to execution proceedings. But this is the very point taken in Balasubramania Chetty v. Swarnammal : (1913)25MLJ367 , and it was held with special reference to Thakur Prasad v. Fakirullah I.L.R. (1894) A 106 that a suit includes proceedings in execution and the word ' suit' in Section 141 must therefore be understood as including execution. And therefore of course the other proceedings referred to Section 141 would not refer to execution proceedings which fall within the term ' suit' in that section. This removes the last prop to Subbiah Naicker v. Ramanathan Chettiar : AIR1914Mad162 and I cannot hold that it is an authority for disputing the ruling in Bhubaneswar Prasad Singh v. Tilakdhari Lal (1918) 4 Pat LJ 135. And as regards authority outside Madras it is only necessary to refer to the observation in Thakur Prasad v. Fakirullah (1894) ILR 17 A 106 (PC) that the proceedings spoken of in Section 647 (now Section 141, Civil Procedure Code) do not include executions. The order of the District Munsif is correct. The petition is dismissed with costs.