1. The two questions referred for the decision of the Full Bench are:
(1) Does Order 9 of the Civil Procedure Code apply to proceedings instituted under Rules 97 or 100 of Order 21?
(2) If the above question is answered in the negative, has the Court an inherent power to set aside the order of dismissal for default or an order passed ex parte against the respondent in those applications on sufficient cause being shown?
2. As to the first question, it is not contested that Order 9 does not apply to proceedings in execution except such as involve the determination of any question under Section 47, in which case the orders thereon would amount to decrees (see Subbiah Ndicker v. Ramanathan Chettiar and Kailash Chandra : AIR1914Mad162 Tarapdar v. Gopal Chandra Poddar I.L.R.(1926) C. 781 (F.B.) decisions which have been followed in this Court in Kaliakkal v. Palani Koundan (1925) 50 M.L.J. 200 and Narayanan Chettiar v. Muthu Chettiar : (1926)51MLJ219 and the argument at the bar has settled round the question whether proceedings under Rules 97 and 100 of Order 21 are proceedings in execution at all. If they are proceedings in execution, it must also be admitted that there is a certain amount of overlapping in the Code, since cases might arise in which the proceedings would, on the face of them, come both under Section 47 and under Rules 97 or 100; for example, cases of obstruction to delivery to the decree-holder under Rule 97 by a judgment-debtor or some other party to the suit at his instigation, or cases of some other party to the suit than the judgment-debtor being dispossessed under Rule 100 by the decree-holder or the auction-purchaser. Such cases will come both under Section 47 and under Rules 97 or 100 and a different procedure would be adopted according to the category in which the Court placed the proceedings. Presumably in a case of such conflict, the main Section 47 would prevail over the rules in the First Schedule, and if so, the orders passed in the proceedings would be decrees and Order 9 would apply. The fact of such overlapping is not to my mind a sufficient reason in itself on which to decide that orders under Rules 97 and 100 are not proceedings in execution.
3. The more general question is whether Order 9 applies to proceedings under Rules 97 and 100, and the answer to that really depends on the question whether such proceedings are proceedings in execution. There is no definition of 'execution' in the Code and the only guide we have as to what the Legislature intended that word to cover is the contents of Order 21, which is beaded 'Execution of Decrees and Orders.' Rules 97 and 100 come under that heading. Prima facie then the Legislature intended that proceedings under these rules should be regarded as included under the word 'execution.'
4. The respondent in the Civil Revision Petition from which this reference arises contends that execution comes to an end when the decree is satisfied, and that, when the decree is not for possession and the decree-holder has obtained his money by the Court-sale, it is improper to hold that any question of possession is a matter of the execution of the decree. He points out that a proceeding under Rule 97 or Rule 100 may not be at all between the parties to the suit; for example, it may be between a stranger auction-purchaser at the Court-sale and a stranger obstructing in one case or dispossessed in the other. He argues that it would be an anomaly to regard proceedings between two strangers to the suit as proceedings in execution of the decree in the suit. There is a great deal of force in this contention and it has weighed with the referring Judges, of whom I was one. Nevertheless, on further consideration, I am constrained to hold that it does not outweigh the inference from the inclusion of these proceedings in the order relating to the execution of decrees and orders. It does not seem reasonable to hold that the Legislature intended us to draw, so to speak, a dividing line after Rule 96 and say that all rules below this line do not relate to execution. In fact, as already indicated, they may in certain cases relate so closely to execution that they would properly fall to be decided under Section 47. The Legislature was clearly not prepared to draw the distinction which the respondent seeks to make. For example, Rule 100 covers both the case of dispossession by the holder of a decree for possession and dispossession by an auction-purchaser of property sold in execution of a decree. The first dispossession is clearly in the course of execution of the decree for possession and there is no hint that the Legislature intended that the second dispossession should not equally be regarded as in execution. Otherwise, we will have to suppose that the Legislature intended us to draw the dividing line right through Rule 100 itself. Similarly Rule 97 covers the case of obstruction to the holder of a decree for possession, and the dividing line will have to be drawn through it also. Proceedings under Rules 97 and 100 follow as sequelae on the execution of the decree (using the word 'execution' in its stricter sense) and on the Court sale, and the Legislature has enacted that such proceedings shall be regarded in law as part of the execution proceedings. There is really very little more to be said on this part of the case. It may be noted also, however, that an application under Rule 97 or Rule 100 must be put in to the executing Court, which may or may not be the Court before which the suit for possession would fall to be tried. This point has to be decided not so much on any general theory as to what execution may be or may include but on what the Legislature has laid down that it shall include.
5. If it is an execution proceeding, then Section 141, on which the respondent relies, will not avail. It is argued that Section 141 will apply to all execution proceedings which are not applications for execution, but I think it is a distinction without a difference. An application under the execution Order 21 will ex facie be an application for execution.. Besides this, the general trend of authority which has interpreted the leading Privy Council case on this section or rather on the old Section 647 corresponding, namely, Thakur Prasad v. Fakirullah is against the idea that Section 141 applies to execution proceedings at all. The Privy Council laid down that the old Section 647 was intended to exclude from its purview the whole of the old Chapter XIX which is devoted to the procedure in execution. The old Chapter XIX is now Order 21, and both Rules 97 and 100 were in Chapter XIX as Sections 328 and 332. With this Privy Council decision before them, the framers of the amended Code made no substantial change in the general wording of Section 647 beyond omitting the explanation, which was unnecessary in view of the Privy Council decision, and re-enacting Section 647 as the present Section 141.
6. Of the many cases and rulings cited at the bar, not many are of assistance. The state of the law in the Calcutta and Patna High Courts was for some time uncertain and rulings on either side may be and have been cited from both Courts. But the Full Bench in Kailash Chandra Tarapdar v. Gopal Chandra Poddar I.L.R.(1926) C. 781 (F.B.) has finally settled the law for the Calcutta High Court and that ruling is against the respondent. In Patna, Sheo-nandan Chowdhury v. Debt Lal Chowdhury I.L.R.(1923) Pat. 372 and Satya Narayan Lall v. Govind Sahay (1918) 3 Pat. LJ. 250 are in favour of the respondent's view, but the Full Bench in Bhubaneswar Prasad Singh v. Tilakdhari Lall (1919) 4 Pat. L.J. 135 (F.B.)which interprets the Privy Council case as covering all proceedings in execution, is entirely against him. So that both the High Courts of Patna and Calcutta have decided against the respondent's view.
7. It is therefore obvious that Section 141 does not apply to such proceedings under Order 21 as are not also proceedings under Section 47. Therefore on the first question the answer is that Order 9 does not apply to such proceedings under Rule 97 or 100 as do not also fall within Section 47.
8. As to the second question, that is, the Court's inherent power to set aside the order, the respondent urges that the Court must have inherent power to set aside its own order of dismissal for default. The contention is that, where the Court is not restricted by the Sections of the Code, it has inherent power to do anything in the name of justice. Such a contention in substance is that the Civil Procedure Code is not a Code conferring powers on a Court but is a Code restricting and delimiting its unlimited powers. To such a view we cannot subscribe. It would allow the Court to do any act whatever provided there was no provision in law directly prohibiting that act being done and would in effect put the Court above the written law altogether. The ordinary Civil Court derives its powers from the Civil Procedure Code and other statutes and possesses only such powers as are therein conferred. The inherent power, so far as it exists, is itself a matter of statute (see Section 151 of the Civil Procedure Code). It has been held by a Full Bench in Neelaveni v. Narayana Reddi : (1919)37MLJ599 that, in the case of setting aside ex parte decrees, the Court has no inherent power and can only act under Order 9, Rule 13. It would be surprising if, in the matter of execution, the Court has inherent powers which it does not possess in the case of a suit. The resort to inherent powers may be justified in a case of gross injustice where the party has no other remedy. But here the party has his remedy by way of suit. This is the principle which has been adopted in several cases in this Court. See Kaliakkal v. Palani Koundan (1925) 50 M.L.J. 200 Narayanan Chettiar v. Muthu Chetiari : (1926)51MLJ219 . and Vemareddi Ramaraghavareddi v. Rajah of Venkatagiri (1926) 52 M.L.J. 123. In Ramappa Chettiar v. Ekambara Padayachi : AIR1924Mad715 a single Judge of this Court has ruled that a Court has inherent power to restore a claim petition under Rule 58 dismissed for default but no authority has been cited or dealt with on the point. On full consideration and giving weight to the matters set out in the order of reference, I think we should not be justified in laying down any general principle that an ordinary Civil Court has inherent power to set aside its own order and to interfere in any case in which it thinks a failure of justice has occurred when the aggrieved party has another remedy by which it can be set aside, even though the remedy is not as summary or as cheap. As a matter of fact the respondent might have come forward at the earlier stages of the execution proceedings, for example, when the property was attached, and did not choose to do so but waited until the final proceedings for delivery were going on, and then failed to appear and prosecute his case.
9. I therefore would answer both the points referred to the Full Bench in the negative.
10. I agree.
Madhavan Nair, J.
11. I agree.
12. This opinion will be sent back to the Division Bench of which I shall be a member. The matter of costs will be decided then.