1. This is a class of case which has given Courts considerable trouble. The present 1st defendant obtained a preliminary decree upon a mortgage against the father of the present plaintiffs. There then followed these applications for a final decree.
Ex. A. Steps not taken. Dismissed.
Ex. B. Dismissed for failure to pay batta.
Ex. C. Dismissed.
Ex. D. 29th September, 1919, ordered on 14th November, 1919.
2. The plaintiffs have brought a suit to set aside the consequent sale on the plea that when the Court passed orders upon Ex. D, it had already dismissed the suit and was functus officio. The lower appellate Court has held that the Court's final decree was not made without jurisdiction and plaintiffs appeal.
3. In this case it is a pure assumption that the suit was dismissed, and there is no reason to suppose that the Court really intended anything of the sort. In Lachmi Narain Marwari v. Balmakuud Marzuari where the Judge actually used the phrase 'The suit is dismissed for want of further prosecution' he explained that the object of dismissal 'had not been to discharge or vacate the appellate decree'. And as pointed out by the Judicial Committee in that case he would have no jurisdiction to dismiss the suit 'the parties have on the making of the (preliminary) decree acquired rights which are fixed unless the decree is varied'. All that the Munsif did in the present case was to dismiss the applications for a final decree because batta had not been paid. Before its amendment in 1st September, 1931, there was no provision in Order 34, Rule 5(3) for serving notice on parties; 'and a Court dismissing an application for a final decree on the ground of non-payment of batta for serving notice was acting under its inherent and not under any statutory power. It arrogates to itself the right to dismiss an application filed under Order 34, Rule 5(3). It is difficult to see how this peculiar action can be construed to be the dismissal of the suit itself, which, as pointed out by the Judicial Committee, is not within the power of the Court. A Court will not ordinarily be presumed to do an illegality. It seems better to follow the face of the record and to hold that the Court successively dismissed applications for a final decree. Such applications as observed by Curgenven, J., in Venkatarama v. Marudachala : AIR1931Mad795 are not applications in execution, and by force of Section 141, Civil Procedure Code, are governed by Order 9 and Order 17 as though they are suits. Under Order 9, Rule 2 the Court dismisses the 'suit' here, the application, for non-service. Then under Order 9, Rule 4 the plaintiff may bring a fresh 'suit' here, put in a fresh application. There is then no need for the plaintiff to get the previous order of dismissal set aside. Mummadi Venkatiah v. Boganatham Venkata Subbiah (1921) 42 M.L.J. 51 upon which the applicant strongly relies, lays down that the previous order is not ultra vires, though it may be erroneous. To this we ^entirely defer, and think it a dangerous doctrine that the judicial acts of Courts can be treated as -mere nullities, and of no effect whatsoever. It was for this reason that this Court declined to interfere in revision in Sreeramulu v. Nagabushanam 1928 M.W.N. 542. We also think it dangerous to carry the principle that a Court may rectify mistakes inadvertently made beyond the ambit of the facts in Debi Bakhsh Singh v. Habib Shah I.L.R. (1913) 35 All. 331 and should hesitate to say, as in Jodha Singh v. Gokaran Das Pande I.L.R. (1925) 47 All. 546 that a Court can revoke its own order of dismissal. But the line of reasoning in Venkatarama v. Marudachala : AIR1931Mad795 makes a revocation unnecessary. The orders of dismissal, Exs. A, B and C, stand as good orders, but plaintiff has in Order 9, Rule 4 a locus penetentiae which gives room for a fresh application. It may be added that this is no artificial way of avoiding a hard case, but runs with the real facts of the situation. The Court when it dismissed the applications had no real intention of dismissing the suit and was only acting in terroreni as said in Lachtni Narain Manvari v. Balmakund Marivari to induce plaintiff to pay '.process fees; and when plaintiff put in a fresh application it was precisely what the Court expected. Artificiality is imported by the assumption that the Court deliberately dismissed the whole suit and rendered itself functus officio.
4. Accordingly the appeal is dismissed with costs.