1. The petitioner who was the judgment-debtor filed a petition to set aside a sale under Order 21, Rule 90 and Sections 47 and 151 of the Code of Civil Procedure. The petition was dismissed on the nth October, 1943, as the petitioner and his pleader were not present in Court at the time when it was called on for hearing. He applied then under Section 151 of the Code of Civil Procedure, to the District Munsiff to revise the order of dismissal, to set aside the sale and to reopen the said petition and enquire into the same.
2. The District Munsiff held that the application would not lie in law. On appeal the Subordinate Judge came to the same conclusion and referred to the decision in Sivasubramania v. Adaikkalam (1944) 1 M.L.J. 259 where it was held that if an execution petition is dismissed for default the provisions of Order 9 cannot be invoked in order to get the said order set aside. The application was set aside in the exercise of the inherent jurisdiction of the Court as pointed out in Valia Mannadiar, In re : AIR1938Mad495 , where the Bench held:
We are. prepared to hold that dismissal for default (of an application under Order 21, Rule 90) is well within the inherent powers of the Court. It is in our opinion absurd to say that the Court must proceed to give a decision on the merits, when the applicant fails to appear in support of his application.
In Vemareddi Ramaraghavareddi v. Rajah of Venkatagiri (1926) 52 M.L.J. 123 a similar question arose with regard to an execution petition and the lower Court allowed a review of the order of dismissal and restored the application. It was held that it had no power to do so as a review was clearly incompetent under Order 47, Rule 1. Mr. Subrahmanyam cites Odgers, J., as saying that the Court has inherent power under Section 151 to set aside an ex parte order if it may be necessary for the ends of justice. But the learned Judge says further:
it seems to be a very strong proposition to say that when an execution petition has been dismissed under the Court's extraordinary power that extraordinary power should be again invoked in order to restore the petition.
In the same judgment Jackson, J. says that,
if the Court could simply strike off such cases, to be restored if necessary on the appearance of the party, there would be no trouble at all.
But the point was that the Court had no such power.
3. Mr. Subrahmanyam reduces his proposition to this, namely, that if a Court has inherent power to dismiss, it must have inherent power to restore. In Alagasundaram v. Pichuvier : (1929)57MLJ381 , that very proposition is discussed and rejected.
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.
4. The Civil Revision Petition must be dismissed with costs.