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Munikrishna Reddy Vs. S.K. Ramaswami and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 612 of 1968 and A.A.A.O. No. 65 of 1966 converted into C.R.P.
Judge
Reported inAIR1969Mad389
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2), 100 to 101 and 115 - Order 17, Rule 1 - Order 21, Rules 89, 90, 91, 92, 92(1), 104, 104(2), 105 and 105(1) - Order 43, Rule 1
AppellantMunikrishna Reddy
RespondentS.K. Ramaswami and anr.
Appellant AdvocateV.V. Raghavan, Adv.
Respondent AdvocateK.S. Champakesa Iyengar and ;K.C. Srinivasan, Advs.
Cases ReferredRampratap v. Triloknath
Excerpt:
civil - maintainability - sections 2 (2) and 115 and order 21 rules 105 and 105 (1) of code of civil procedure, 1908 - findings of subordinate judge that appeal not maintainable because party should have filed application under order 21 rule 105 for restoration of application which must be considered to have been dismissed for default under order 21 rule 104 (2) - order 21 rule 92 (1) would cover contingency of disallowance of application on account of default - by virtue of order 43 rule 1 (j) right of appeal conferred even in a case where application under order 21 rule 90 dismissed for default - subordinate judge failed to exercise jurisdiction vested in him - court inclined to interfere under section 115 (b). - - 4. the lower court failed to note that the petitioner's counsel was.....venkataraman, j.1. this was first filed as an appeal (c. m. s. a. no. 65 of 1966) by one munikrishna reddy, but on the objection of sri k. s. champakesa iyen-gar, the learned counsel for the respondents, that an appeal did not he, an application (c. m. p. no. 3505 of 1968) was filed to convert this appeal into a civil revision petition, and. in the interests of justice, i have decided to convert this appeal into a civil revision petition. (c. b. p. 612 of 1968) i shall, therefore, refer to munikrishna reddy as the petitioner.2. he was the second defendant in order s. no. 580 of 1962 on the file of the district munsif of vellore, it was a mortgage suit. a final decree for sale, was passed in 1964, and the decree-holder, ramaswamy reddy, filed e. p. no. 513 of 1964 and brought the several.....
Judgment:

Venkataraman, J.

1. This was first filed as an appeal (C. M. S. A. No. 65 of 1966) by one Munikrishna Reddy, but on the objection of Sri K. S. Champakesa Iyen-gar, the learned Counsel for the respondents, that an appeal did not He, an application (C. M. P. No. 3505 of 1968) was filed to convert this appeal into a civil revision petition, and. in the interests of justice, I have decided to convert this appeal into a civil revision petition. (C. B. P. 612 of 1968) I shall, therefore, refer to Munikrishna Reddy as the petitioner.

2. He was the second defendant In Order S. No. 580 of 1962 on the file of the District Munsif of Vellore, It was a mortgage suit. A final decree for sale, was passed in 1964, and the decree-holder, Ramaswamy Reddy, filed E. P. No. 513 of 1964 and brought the several items of the hypotheca to sale on 15-2-1965. One Sadasiva Reddy became the auction purchaser of some of these items for Rs. 3,765/-. Within thirty days Munikrishna Reddy, the petitioner, filed an application under Order 21 Rule 90 C. P. C., E. A. No. 352 of 1965, for setting aside the sale on several grounds, such as, (i) no notice was taken, to him under Order 21 Rule 66 and he was not even aware of the sale; (ii) there was no proper proclamation or publication) (iii) the decree-holder had valued the property at a grossly low price, though it was really worth Rs. 20,000/- and that was responsible for the low price for which it was sold; (iv) the auction purchaser was the decree-holder's brother-in-law and only a benamidar for the decree-holder; and permission to bid not having been taken under Order 21 Rule 72, the sale was vitiated,

3. This application was contested by the decree-holder and the auction purchaser, and came up for hearing on 14-7-1965. On that date the petitioner was absent and the petition was dismissed on that ground, the actual order of the learned District Munsif being, 'Petitioner absent. Petition dismissed. No costs'. Shortly thereafter the execution petition was taken up and, after reciting the dismissal of E. A. No. 352 of 1965, part satisfaction for Rs. 3.606-40 was recorded, the sale was confirmed and the sale certificate was directed to be issued, and the execution petition itself was dismissed on 14-7-1965. Against the order dated 14-7-1965 dismissing E. A, No. 352 of 1965, the petitioner preferred an appeal under Order 43, Rule 1 (j), which provides for an appeal against 'an order under Rule 72 or Rule 92 of Order 21 setting aside or refusing to set aside a sale'.

and St came up before the learned Subordinate Judge of Vellore as C. M.A. No. 146 of 1965. In paragraphs 4 and 5 of the grounds of appeal the petitioner urged as follows:

'4. The lower court failed to note that the petitioner's counsel was enlarged in a State brief before the Assistant Sessions Judge, Vellore in sessions Case No. 23 of 1965 and therefore could not be present in Court. The lower court ought to have accepted the representations made by Sri V. Padmanabhan, Advocate, Vellore, on behalf of petitioner's counsel and granted an adjournment.

5. The lower court should at least have passed over the case till the petitioner's counsel was able to come to the lower court.'

4. The learned Subordinate Judge posed only one point as the point for consideration, namely, whether the appeal was maintainable. He held that the appeal was not maintainable, because, in his opinion, the only remedy of the party was to have filed an application under Order 21, Rule 105 for restoration of the application, E. A. No. 352 of 1065, which must be considered to have been dismissed for default under Order 21, Rule 104 (2). It is, at this stage, necessary to quote Order 21, Rules 104 and 105.

'104 (1): The court before which an application under any of the foregoing rules of this order is pending may fix a day for the hearing of the application.

(2) Where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing, the Court may make an order that the application be dismissed.

(3) Where the applicant appears and the respondent to whom the notice has been issued by the Court does not appear, the Court may hear the application ex parte and pass such order as it thinks fit.

Explanation: An application referred to in Sub-rule (1) includes a claim or objection made under Rule 58 of this order.

105 (1): The applicant against whom an order is made under Sub-rule (2) of the preceding Rule or a respondent against whom an order is passed ex parte under Sub-rule (3) of the preceding Rule or under Sub-rule (1) of Rule 23 of this Order, may apply to the Court to set aside the order and if he satisfies the Court that there was sufficient cause for his non-appearance when the application was called on for hearing, the Court shall set aside the order on such terms as to costs or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application.

(2) No order shall be made on an application under Sub-rule (1) unless notice of the application has been served on the opposite party.

(3) An application under Sub-rule (1) shall be made within thirty days of the date of the order or, where in the case of an ex parte order the notice was not duly served, the date when the applicant had knowledge of the order.

(4) The provisions of Section 5 of Indian Limitation Act 1908, shall apply to applications under Sub-rule (1). These rules were added in Madras by P. Dis. No. 397 of 1945 as a result of the decision of Leach, C. J. and Kunhi Raman, J. in Siva Subramania Chettiar v. Adaikkalam Chettiar : AIR1944Mad293 . I shall come back to it later. The learned Subordinate Judge however, further proceeded to deal with the merits of the application, E. A. No. 352 of 1965, though the petitioner had not adduced any evidence in support thereof. The learned Subordinate Judge expressed the opinion that the application was frivolous and had been put in only to protract the proceedings. He drew this inference from the prior conduct of the petitioner. He wound up by saying: 'The petition was dismissed only for the absence of the petitioner on 14-7-1965, for which no proper ground was alleged. Hence this appeal is not only not maintainable, but also devoid of merits. Hence this appeal is dismissed with costs.'

5. Against the said order dated 19-1-1966 Muni Krishna Reddy preferred C.M.S.A. No. 65 of 1066, Sri Cham-pakcsa Iyengar, the learned Counsel for the respondents took the objection that no second appeal lay against that order. The contention is well founded. A second appeal will lie under Section 100 C. P. C. only if the order of the first court can be considered to be a decree under Section 2(2), C. P. C. and the order of the learned Subordinate Judge can be said to be a decree passed in appeal under Section 96 C. P. C, Section 104 provides for appeals from the orders listed out in Order 43, and Section 104(2) says that no appeal shall lie from any order passed in appeal under this section. The first question, therefore, is whether the order of the District Mun-sif dated 14-7-1965 could be said to be a decree within the meaning of Section 2(2) C. P. C.

6. It is an order on an application under Order 21, Rule 90, and would, therefore, be an order under Order 21, Rule 92, against which the petitioner claims a right of appeal under Order 43, Rule 1 (j). But the petitioner contends, that the grounds mentioned in the application, E. A. No. 352 of 1965, also raised a question under Section 47 C. P. C. in that no notice went to him and that the sale would be void altogether. It is a question whether this objection will fall under Section 47 in view of the fact that there was a final decree authorising the sale. But, assuming that there was a question under Section 47, the difficulty in the way of the petitioner is that Section 2(2) C. P. C. excludes from the definition of decree any order of dismissal for default, and the order dated 14-7-1965 was an order of dismissal for default. Hence, there can be no doubt that no second appeal will lie to this Court. However, in the interests of justice, I have decided to convert the appeal into a revision petition. It has been numbered as C. R. P. No. 612 of 1968.

7. The question for consideration under Section 115(b) C. P. C. will be whether the appeal to the learned Subordinate Judge was competent, and, by dismissing it as not maintainable, the learned Judge failed to exercise a jurisdiction vested in him by law. The difficulty in deciding the question arises from the fact that by P. Dis. No. 397 of 1945, Rules 104 and 105 were added in Order 21 for restoration of the petition dismissed for default, and a further provision, Order 43, Rule 1 (jj) was added providing for appeal against the order rejecting an application filed under Order 21, Rule 105. The question is whether because the petitioner could have availed himself of that remedy of an application under Order 21, Rule 105 (1) he is precluded from filing an appeal under Order 43, Rule 1 (j). In considering this question, it will be convenient to consider the position as it was before the addition of Order 21, Rules 104 and 105, and Order 43, Rule 1 (jj) by P. Dis. No. 397 of 1945.

8. For arriving at a proper meaning of the words in Order 43, Rule 1 (j), we shall have to turn to Order 21, Rule 92, which runs thus:

'92. (1) Where no application is made under Rule 89, Rule 90, or Rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute.

(2) Where such application is made and allowed, and where, in the case of an application under Rule 89, the deposit required by that Rule is made within thirty days from the date of sale, and in case where the amount deposited has been diminished owing to any cause not within the control of the depositor such deficiency has been made good within such time as may be fixed by the Court, the Court shall make an order setting aside the sale:

Provided that no order shall be made unless notice of the application has been given to all persons affected thereby.

(3) No suit to set aside an order made under this Rule shall be brought by any person against whom such order is made.'

The application under Rule 89 is by the judgment-debtor making a deposit of the decretal amount with five percent solatium to the auction purchaser. Rule 90 relates to an application to set aside the sale on the ground of material irregularity or fraud. Rule 91 is an application by the auction purchaser to set aside the sale on the ground that the judgment-debtor had no saleable interest in the property sold. There is no difficulty in construing the words 'setting aside a sale' which occur in Order 43, Rule 1 (j). The difficulty arises only in construing the words 'refusing to set aside a sale'. It is clear, however, that these words must correspond to the following words in Order 21, Rule 92. 'where such application is made and disallowed.' The words, 'where such application is made and disallowed.' are, however apt and wide enough to cover a case of the disallowance of the application under Order 21, Rule 89, Rule 90 or Rule 91, for whatever cause, whether on merits or for default or for pny other reason. Otherwise, it would mean that there is a lacuna in Order 21, Rule 92, itself. If those words are not to apply to a case where an application is dismissed for default, and are to be confined to a case where the application is disallowed on merits, it would mean that Order 21, Rule 92 does not provide for a case where an application under Order 21, Rule 89, Rule 90 or Rule 91 is dismissed for default. The clause, 'Where no application is made under Rule 89, Rule 90, or Rule 91' cannot possibly apply to case where an application is filed but is dismissed for default. If we hold that such a contingency is not covered by the clause 'where such application is made and disallowed', it would mean that Order 21, Rule 92 does not provide for such a contingency. Yet it is obvious that even in such a contingency the Court should confirm the sale. It is, therefore, clear that the clause in Order 21, Rule 92, 'where such an application is made and disallowed' will cover not merely a case where an application is disallowed on merits, but also covers a case where the application is disallowed for any other reason, such as for default.

9. Where the application is allowed, the court sets aside the sale. The correspondence between Order 21, Rule 92 and Order 43, Rule 1 (j) would thus be complete. It follows that the words 'an order under Rule 92 of Order 21. .... refusing to set aside a sale' which occur in Order 43, Rule 1 (j) must exactly correspond to the clause in Order 21 Rule 92 (1) 'where such application is made and disallowed.' And we have seen that the latter clause will cover a contingency of the disallowance of an application on account of default It follows, that the words In Order 43. Rule 1 (j) 'an order under Rule 92 of Order 21 refusing to set aside a sale' will confer a right of appeal even in a case where the application under Order 21, Rule 90 is dismissed for default No other conclusion was possible as Order 43 Rule 1 (j) stood before the Introduction of Order 21, Rules 104 and 105, and Order 43, Rule 1 (jj) by P. DIs. No. 397 of 1945. It is not a matter for surprise, therefore, that that was how Order 43, Rule 1 (j), was interpreted in several High Courts. It will be convenient, from the chronological point of view, to note the decisions of the Calcutta High Court.

10. In Kali Kanta v. Shyam Lal. 25 CLJ 163: 38 Ind Cas 598 : AIR 1917 Cal 815 decided by Richardson and Smither, JJ., in 1916, the judgment-debtor's application under Order 21, Rule 90 was dismissed for default. His appeal was entertained and allowed by the District Judge. A revision petition was filed in the High Court. It was held that the District Judge had jurisdiction in entertaining the appeal under Order 43, Rule 1 (j). It was argued by the auction purchaser (petitioner before the High Court) that the proper course for the judgment-debtor was to apply to the executing court (Munsif) under Order 9 Rule 9 C. P. C, to have the dismissal order set aside. The learned Judges observed that it may be that it was open to the judgment-debtor to take that course, but they added:

'In our opinion, the course which he actually took was also open to him. The order, though it was an order dismissing the application to have the sale set aside for default, was still an order within Rule 92 of Order 21. Under Order 43, Rule I (j), an order under Rule 92 of Order 21, setting aside or refusing to set aside a sale, is appealable. The language of Order 43 Rule 1 (j) is thus wide enough to cover a case where an application to have a sale set aside is dismissed for default.'

11. This was followed by another Bench of that Court in Narendra Nath v. Rakhal Das, : AIR1925Cal510 . There, when the application under Order 21, Rule 90 came up for hearing, neither party appeared. The learned Subordinate Judge made an order on 29th November, 1923:

'Neither party appears, though called. Ordered that the objection be disallowed for default. The sale be confirmed and the execution case be dismissed in part satisfaction.'

The petitioner applied to the learned Subordinate Judge for restoration of the application. The learned Subordinate Judge dismissed the application. The petitioner came up in revision. The revision petition was dismissed. The learned Judges pointed out that the petitioner should have appealed against the order dated 29-11-1923 dismissing the application,

12. It may be that the observation In 25 CLJ 163 :AIR 1917 Cal 815 that It was open to the Judgment-debtor to file an application under Order 9, Rule 9, may not be correct in view of the decision of their Lordships of the Privy Council In Thakur Prasad v. Fakir-ullah, ILR (1895)All 106 and the decision of the Full Bench of our High Court In Alagasundaram Pilial v. Pichuvier ILR 52 Mad 899 : AIR 1929 Mad 757 . and in Arunchalam v. Veerappa Chet-tiar, ILR 55 Mad 17 : AIR 1931 Mad 656 . The ground of these decisions is that Order 9 Rule 9 applies in terms only to suits and does not in terms apply to execution proceedings, and that if the provisions of Order 9 had to be applied to execution proceedings, it must be only by virtue of seclion 141 of the Code of 1908, but it had been held by the Privy Council construing Section 647 of the Code of 1882, that, since elaborate provisions had been made for execution proceedings, It would be surprising If the framers of the Code had intended to apply another procedure mostly unsuitable by saying In general terms that the procedure for a suit should be followed as far as applicable. But this does not affect, and, on the contrary, reinforces the reasoning in 25 CLJ 163 :AIR 1917 Cal 85 that the language of Order 43. Rule 1 (j) is wide enough to cover a case where an application to have the sale set aside is dismissed for default.

13. The above decision was, however, distinguished by Page, J., sitting with Cuming, J., In Basaratulla Mia v. Reaju-ddin Mla ILR 53 Cal 679 :(AIR 1928 Cal 773 . That was a case, where, when the application under Order 21, Rule 90 came up for hearing, neither party was present, and the Munsif dismissed the application. The petitioner applied under Order 9, Rule 4. Page J., referring to the opinion of Richardson, J. in 25 CLJ 163 : AIR 1917 Cal 815 pointed out that it was a case under Order 9 Rule 9, and not Order 9, Rule 4. This distinction was further explained by him, sitting with Graham, J., In Easanta Kumar Adak v. Khirode Chan-dra Ghose : AIR1928Cal25 . The view of Page, J., is that, where neither party appears, and the application is dismissed, it will be a dismissal under Order 9, Rule 3, and if cannot be said that the Court has refused to set aside the sate and that all that can be said Is that in the absence of the parties the Court refused to consider whether the sale should be set aside or not, and such an order, in the learned Judge's opinion, was not appealable under Order 43. Eule 1 (j). That was the situation in : AIR1926Cal773 . In the later case, ILR 55 Cal 616 : AIR 1928 Cai 25 the judgment-debtor was absent, but the auction purchaser was present, and the application was dismissed at his instance. Page, J., held that the order dismissing Ihe application to set aside the sale was an order refusing to set aside the sale within the meaning of Order 43, Rule 1 (j). and it was just like an order dismissing the application on merits.

14. The matter came up again in Ansarali v. Bhim Shankar Datta Tewarf : AIR1929Cal407 , where the application of the judgment-debtor was dismissed for default in the appearance of both the parties. The learned Subordinate Judge refused to entertain the appeal, following the above decision of Page, J. Against that a revision petition was filed by the judgment-debtor. Mukerji and Mitter, JJ., held that the distinction of Page, J., was not sound in principle. They referred to the line of decisions, including 25 CLJ 163 : AIR 1917 Cal 815, where it had been held that Order 43, Rule 1 (J) would apply to a case of dismissal of the application under Order 21. Rule 90 for default. They observed:

'It is the disallowing of the application made under Order 21, Rule 90 which corresponds to the order refusing to set aside a sale within the meaning of Order 43, Rule 1, Clause (j). The fact that a distinct order has not been recorded confirming the sale does not alter the Character of the order disallowing an application under Order 21, Rule 90, and it is this last mentioned order that is appealable by reason of the provisions of Order 43, Rule 1 Clause (j), My learned brother, Page, J., was prepared to make a distinction between orders for default of appearance on the part of both the parties and orders passed for default of appearance of one of the parties only, and he observed that. In dismissing an application for default, when neither party appears on the case being called on for hearing, the Court does not refuse to set aside the sale, but, in the absence of the parties, refuses to consider whether the sale should be set aside or not. With all respect, I should say that this distinction, in my judgment, really makes no difference in the result, because the statutory consequence of the disallowing of the application is the confirmation of the sale, at least to the extent covered by the application. In my opinion, it la not correct to draw any conclusion from the analogy furnished by the provisions of Order 9, Rule 4, and Order 9, Rule 9, because the provisions of Order 9 have got no application to a case, under Order 21, Rule 90 C. P. C.'

The matter came up before this Court before Varadacliariar, J., in Maruda-muthu Mudaliar v. Venkatarama Aiyar : AIR1939Mad482 . In that case, on the judgment-debtor's application under Order 21, Rule 90, the executing Court ordered the applicant to deposit the sale amount in cash. The learned District Munsif acted under the proviso which had been introduced to Order 21 Rule 90 on 20-10-1936 in High Court P. Dis. No. 691 of 1936. The applicant tendered a draft bond offering immovable property as security. The court declined to accept it and accordingly rejected the petition, Against that order the petitioner preferred an appeal to the learned Subordinate Judge of Kumbakonam. The learned Subordinate Judge dismissed the appeal on the ground that the case did not fall within the terms of Order 43, Rule 1 (j), which gave a right of appeal against an order refusing to set aside a sale. The learned Judge was of the opinion that an order contemplated by that sub-rule was one passed after the Court had entertained the application and not one whereby the Court declined to entertain the application.

15. Against the order of the learned Subordinate Judge the judgment-debtor preferred a revision petition. Varadacliariar, J. set aside the order of the learned Subordinate Judge and held that the appeal to him was competent. The learned Judge started by pointing out that there could be little doubt that at the time when the sub-rules of Order 43 Rule 1 were framed, this distinction between an order on the petition and an order declining to entertain the petition could not have been thought of, so far as applications under Order 21, Rule 90 were concerned. No doubt the distinction was recognised in the case of plaints; for, in the case of a suit, only if the suit is dismissed on merits, there will be a decree within the meaning of Section 2(2), attracting the right of appeal under Section 96 C. P. C. But, where it is dismissed for default, it would not amount to a decree. In such a case, no appeal would lie and only an application would have to be filed under Order 9, Rule 9 for restoration. But there was no such distinction in the case of an application under Order 21, Rule 90, and the dismissal of it for any cause would attract the right of appeal under Order 43, Rule 1 (j). When the proviso to Order 21, Rule 90 had been recently added in 1933, the question of appealability did not appear to have been specifically considered, may be, by accident. Still the learned Judge held:

'I have only to see whether the etymological meaning of the words found in the sub-clause will or will not apply to the case.'

He concluded:

'If a person applies to have a sale set aside I do not see how a rejection of his petition is any the less a refusal to set aside the sale because the court passed that order even before admitting the petition.'

16. It seems to me that the above decision will apply with greater force to the case before us, because, if even in a case where an application under Order 21, Rule 90, is not admitted the order will be appealable under Order 43, Rule 1 (j), much more so an order dismissing the application after admission, even though for default, must be appealable under Order 43, Rule 1 (j). The rejection of the application for default is still a refusal to set aside the sale, and the language of Order 43, Rule 1 (j) was not incapable of being construed as comprehending an order of rejection for default.

17. In passing, I may point out that the decision of Varadachariar, J., has been followed by a Bench of the Andhra Pradcsh High Court in Sheik Mastan v. Gubba Atchayya, : AIR1959AP667 .

18. No further direct decision under Order 43, Rule 1 (j) before P. Dis. No. 397 of 1945 has been brought to my notice. But I have been able to find a decision of Somayya, J., in P. K. Narasayya v. Thimmappa. : AIR1943Mad584 , which has approved of the decision of the Calcutta High Court in : AIR1929Cal407 . In that case, the suit was dismissed by the District Munsif for default. An application, I. A. No. 474 of 1941, was filed under Order 9. Rule 9 to set aside the dismissal of the suit for default. This application. I. A. No. 474 of 1941, was itself dismissed for default by order dated 1-10-1941. Against that order an appeal was preferred by the plaintiff. The District Judge dismissed the appeal holding that no appeal lay. The plaintiff preferred a revision petition to this Court and it came up before Somayya, J. The learned Judge held that the order of the District Munsif dated 1-10-1941 was clearly appealable under Order 43, Rule 1 (c), which runs:

'Order 43 (1): An appeal shall lie from the following orders under the provisions of Section 104, namely- (c) an order under Rule 9 of Order 9rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit'.

The learned Judge observed;

'Apparently, there is no reason to confine the order passed on an application under Order 9 Rule 9 to one passed on the merits. Whether that application was dismissed on the merits or for default, it is nevertheless an order rejecting an application for an order to set aside the dismissal of a suit. The wording of Order 43. Rule 1 (c) is in support of an appeal being entertained under that clause.'

The learned Judge followed the decision of the Allahabad High Court in Uma Datt v. Mt. Zakia Bibi : AIR1936All737 , the decision of the Patna High Court in Mufti Reazuddin v. Lala Mahe-shanand, : AIR1929Pat529 (a case under Order 43 Rule 1 (d),) of the Calcutta High Court in Kumud Kumar v. Hari Mohan, 21 CLJ 628:30 I. C. 45 ; AIR 1916 Cal 391 fa case under Order 43 Rule 1 (d),) and the decision in Ansarali v. Bhim Shankar 'Dutta : AIR1929Cal407 and observed:

'The same view was taken by the Calcutta High Court in a later decision in Ansarali v. Bhim Shankar Dutta : AIR1929Cal407 where an application under Order 21, Rr. 90 and 92 had been dismissed for default and the question was whether an appeal lay under Order 43 Rule 1 (j). The wording of clauses (c), (d) and (j) of Rule 1 of Order 43, is similar and the decisions under the clauses apply.'

Uma Datt v. Mt. Zakia Bibi, : AIR1936All737 was a case where the plaintiff's suit had been dismissed for default and he applied for restoration of the suit, In that application he had not paid the necessary process fee for service of notice on some of the defendants. The application was dismissed by the learned District Munsif on that ground. In appeal the learned District Judge set aside the Munsif's order and directed the Munsif to dispose of the application according to law. In revision the learned Judges overruled the contention of the defendants that no appeal lay to the District Judge under Order 43, Rule 1 (c). The learned Judges observed;

'The contention that was most strenuously advanced before us by learned counsel for the applicants was that an order can be said to be one under Order 9 Rule 9 only when an application has been dismissed on the merits. We can find no warrant for confining the operation of Rule 9 to such a case. There are no such qualifying words in the rula Itself,'

It will be noticed that, as pointed out by Somayya, J., the wording of Order 43, Rule 1 (c), (d.) and (j) is similar, and it is immaterial whether the application concerned was rejected on the merits or for default.

19. The other decisions, where It hag been held that an appeal will lie under Order 43, Rule 1 (c), (d), or (m), even if the application under Order 9 Rule 9 or Order 9 Rule 13 or Order 23 Rule 3, as the case may be, is dismissed for default, are Madanlal v. Tripura Modern Bank Ltd. AIR 1954 Ass 1: ILR (1953) 5 Ass 538 (Sarjoo Prasad C. J., and Deka J., Rama Labhaya, J., dissenting), Doma Choudhary v. Ram Naresh Lal, : AIR1959Pat121 ; Bansidhar Estate Collieries and Industries Ltd. v. The State, : AIR1959Pat319 , and Nanak Chand v. Pavas Ram, AIR 1958 Him Pra 9.

20. Sri K. S. Champakesa lyengar, the learned counsel for the respondents has not been able to produce any decision showing that, before the addition of Order 21, Rules 104 and 105, and Order 43, Rule 1 (jj) by P. Dis. No. 397 of 1945, Order 43, Rule 1 (1) was construed in the sense contended for by him, namely, as being inapplicable to a case of dismissal of an application. under Order 21, Rule 90 Cor default. But he submitted the following arguments in support of his contention. It was held in the Full Bench decisions of this Court in ILR 52 Mad 899 : AIR 1929 Mad 757 and ILR 55 Mad 17 : AIR 1931 Mad 65, that the provisions of Order 9 C. P. C. did not apply to proceedings in execution. In the latter case, an ex parte order of attachment of immovable properties of the eighth defendant was made in execution. He filed an application in the executing court under Order 9, Rule 13 to set aside the order and alleged that his counsel had only been a minute late in appearing before the Court. The application was dismissed by the learned Subordinate Judge on the ground that Order 9 was inapplicable to execution proceedings. The view of the learned Subordinate Judge was upheld by the Full Bench. Though in that parti-cular case the eighth defendant had not suffered any real hardship, they expressed the opinion that many cases might occur in execution proceedings where to prevent a judgment-debtor or a decree-holder having an application or petition restored under Order 9, Rule 13, might be a great hardship and that immediate steps would be taken to frame a new Rule making Order 9 applicable to such proceedings in execution.

21. As a result of this, the following provision was inserted as Rule 15 in Order 9, by High Court Notification dated 6-3-1933:

'15 (1): Rules 6, 13, and 14 shall apply mutatis mutandis to those proceedings in execution falling within Section 47 of the Code in which notice to the opposite party is required under the provisions of the Code.

(2) subject to the provisions of Sub-rule (2) of Rule 13, an application under this Rule shall be made within 30 days of the date of the order, or where the notice was not duly served on the date when the applicant had knowledge of the order.'

22. It will be seen that even the new Rule only enabled the judgment-debtor to file an application for setting aside the ex parte order passed against him, and did not enable the decree-holder to file an application for restoration of an execution petition which had been dismissed for default. Such a case arose before Leach. C. J., and Kunhi Raman J., in : AIR1944Mad293 . There a twelve-year old execution petition was dismissed for default on the 4th of April 1941. The decree-holder was a minor. He filed an application through his next Mend for review of the order of dismissal. The District Judge granted the application, in the exercise of his inherent powers under Section 151 C. P. C. The judgment-debtors filed appeals to the High Court which were allowed by Horwill J. Hor-will J.'s order was confirmed in Letters Patent Appeal by the Bench. The learned Judges, following the decision in V. Romaraghava Rcddi v. Raja of Venka-tagiri : AIR1927Mad355 , held that the court could not invoke the inherent powers under Section 151 C. P. C. But they proceeded to point out that the case was one of great hardship and suggested that an amendment should be made to Order 9 Rule 15 C. P. C., so as to make it applicable even to a decree-holder whose execution petition has been dismissed for default of appearance. It was in consequence of this that the amendments in P. Dis. 397 of 1945, were made. Thereby rules 104 and 105 already extracted, were added in 0.21 and because of that, Rule 15 of Order 9 was deleted. A new provision for appeal under Order 43, Rule 1 (jj) was also added to the following effect:

'Order 43 (1) -- An appeal shall lie from the following orders under the provisions of Section 104, namely. .... (jj) an order rejecting an application under Sub-rule (1) of Rule 105 of Order 21 provides an order on the main application referred to in Sub-rule (1) of Rule 104 of that order is appealable'.

These decisions -- so Mr. K. S. Champakesa Aiyangar the learned counsel for the respondents submits -- make it clear that till the amendments effected by P. Dis. No. 397 of 1945. the Court had no inherent power under Section 151 C. P. C. to restore an application under Order 21 Rule 90, which had been dismissed for default, and even under the provisions in Order 9 Rule 15, only objections falling within Section 47 could be made the subject matter of an application for restoration. Incidentally, the learned counsel referred to two decisions in SornaraiupalH Mahadevudu v. Hindu Religious Endowments Board Madras : AIR1935Mad585 and Venkataseshayya v. Ramaraju : AIR1935Mad714 , where it was held that Rule 15 was not retrospective. On these premises, the learned counsel argues that till the amendments effected by P, Dis, No. 397 of 1945, the executing court had no power at all to restore the application under Order 21 Rule 90, which had been dismissed for default. If so, It would not be right--so runs the argument--to interpret Order 43 Rule 1 (j) as conferring a right of appeal against an order dismissing for default an application under Order 21 Rule 90; for, otherwise, it would mean that the appellate court would be enabled to do what the executing court could not have done. Sr! Champakesa Aiyengar then proceeds to urge that the same position would continue even after the amendments made by P. Dis. No. 397 of 1945. and, in fact, the position would be confirmed by the amendments made by P. Dis. No. 397 of 1945, because those amendments, according to the learned counsel, would show that the only remedy of the judgment-debtor is to file an application under Rule 105 for restoration of the application under Order 21, Rule 90 which had been dismissed for default. The learned counsel contends that the Legislature having made an express provision like Order 21 Rule 105, it Is unreasonable to hold that the Legislature intended to confer a concurrent remedy of appeal under Order 43 Rule 1 (j). The learned counsel further submits that the contrary construction would involve an overlapping between Order 43 Rule 1 (i) and Order 43 Rule 1 (jj).

23. For the moment I shall consider the position on the assumption that a case like the present arose before the amendments effected by P. Dis. 397 of 1945. In view of the decision of the Pull Bench in ILK 52 Mad 899 , and 914 : AIR 1929 Mad 757 , It would have to be held, that the executing court would have no inherent power of restoration, where the party had any other remedy. But in this case Order 21 Rule 93 (3) expressly barred a suit. Therefore, the question would be whether the judgment-debtor had no other remedy at all. Yet that is what the argument of the learned counsel would come to, because he would say that there was no right of appeal undes Order 43, Rule 1 (j), and that the executing court itself would have no inherent power to restore the application dismissed for default. Surely this would be an untenable position. It might be that the judgment-debtor had sufficient cause for non-appearance. Actually, if this particular case had arisen then, it would be seen that, according to the judgment-debtor, his learned counsel was engaged in defending a sessions case, having been engaged by the State for that purpose. That, if true, was certainly sufficient cause for a passing over of the matter till the learned counsel was able to arrive. Yet, according to the contention of Mr. K. S. Champakesa Aiyangar, even In such a case the judgment-debtor had no means of getting rid of the order of dismissal for default. I have no doubt that the wording of Order 43 Rule 1(j) (which stood alone before P. Dis No. 397 of 1945) was wide enough to allow an appeal against an order dismissing an application under Order 21 Rule 90 for default. That was the view of Varada-chariar J. in : AIR1939Mad482 and the view in the Calcutta decisions, in particular : AIR1929Cal407 which has been approved by Somayya J. in AIR 1943 Mad 584. If an appeal would lie under Order 43 Rule 1 (j), no hardship might be caused in following the observations in the Full Bench decision in ILR 52 Mad 899 : AIR 1929 Mad 757 . that the execuing court itself had no Inherent power of restoration,

24. No anomaly would necessarily be involved in the circumstances that though the executing court might not have an inherent power of restoration, the appellate court would have the power of restoration. In any case, that would not be a consideration for refusing to give effect to the plain wording of Order 43 Rule 1 (j) (which stood alone before P. Dis. 397 of 1945).

25. A question might be raised as to what the appellate court could do before deciding whether the judgment-debtor had sufficient cause for non appearance. This would really not be such an insuperable difficulty as it might seem. The appellate court might decide the matter on affidavits or by calling for a report from the executing court, and perhaps It might even be open to It to remand the case to the executing court with a direction to restore it to file. If after enquiry, if was satisfied that the judgment-debtor had sufficient causa for non-appearance, but not otherwise,

26. There are observations to the above effect in some decided cases; for example, of Deka J. in AIR 1954 Ass 1 The question before the court was whether the trial court had inherent power under Section 151 C. P. Code to restore an application under Order 9 Rule 13, dismissed for default. In that connection, the learned Judges considered the question whether an appeal could He under. Order 43 Rule 1 (d) against the order of dismissal for default. The counsel argued that an appeal would not lie, because the appellate court could not have sufficient material to decide whether the applicant had sufficient cause for non-appearance. In repelling this contention Deka J. observed-

'This is undoubtedly an argument that has some force, but, on the other hand, it can be said that the appellate court might decide the case on affidavit or might even examine the witnesses or in a suitable case might send down the case to the lower court for recording of the evidence in the matter. This, of course, would be a lengthy process and might be a costlier remedy, but when the statute provides that an appeal lies against the order refusing to set aside an ex parte decree, we cannot distinguish the cases where those applications were dismissed for default of the petitioners'.

Similar observations were made In a similar connection (under Order 43 Rule 1 (e) in : AIR1959Pat121

'A party cannot be held to have had no right of appeal simply because he is not likely to obtain relief unless he satisfies the appellate court by affidavits or otherwise that, on the facts of the case, the dismissal of the application filed by him under Order 9 or Rule 13 of Order 9 was wrong or unjustified.... The right of appeal is a creature of statute and can neither be conferred nor taken away on a consideration of the question whether the remedy will or will not be convenient or adequate'.

Similar observations were made in a case arising under Section 540 Civil Procedure Code of 1882 (corresponding to Section 96(2) of the Code of 1908), providing 'an appeal may lie under this Section from an original decree passed ex parte'. The Judges who made the order of reference to the Full Bench in Jonar-dan Dobey v. Ramdhone Singh, ILR (1896) Gal 738 were inclined to take the view that the remedy of appeal in such a case would be ineffective, because the appellant might not have sufficient material on record to convince the appellate court that the order declaring him ex parte was improper. The learned Judges, therefore, expressed the opinion that the proper remedy was an application for setting aside the ex parte decree under Section 108 of the old Code (corresponding to Order 9 Rule 13 of the present Code). The above observations were relied on before the Full Bench of this Court in Sadhu Krishna Aiyar v. Kuppan Ayyangar, ILR (1907) Mad 54 but were considered not to be sufficient for departing from the plain meaning of the wording of Section 540, namely, that the Legislature by accident or design had given a right of appeal apart from the merits. Consequently, it was held that the appellate Court could also go into the question whether there was sufficient cause for non-appearance of the defendant.

27. For the above reasons, I am definitely of the view that, if a case like this had arisen in Madras before the amendments effected by P. Dis. No. 397 of 1945 and the application under Order 21 Rule 90 was dismissed for default, an appeal would have lain under Order 43 Rule 1 (j), which stood by itself, then.

28. The most important question, however, is whether the above position has been altered as a result of the addition of Order 21 rules 104 and 105, and Order 43 Rule 1 (jj) by P. Dis. No. 397 of 1945. I am of the view that. If the true position before the additions was as indicated by me, that Order 43, Rule 1 (j) gave a right of appeal even In a case where the application under Order 21 Rule 90 had been dismissed for default, one should require clear words in Order 21 Rules 104 and 105 and Order 43 Rule 1 (jj) to wipe out that position, and, since there are no such words in the newly added provisions, the position before 1945 would still prevail. After all, there Is nothing inherently absurd or startling In the notion of concurrent remedies. We have seen one such instance in the provision in Section 96(2) that an appeal may lie from an original decree passed ex parte, and, according to the decision of the Full Bench in ILR (1907) Mad 54 In such an appeal the appellate court could go into the question whether the defendant had sufficient cause for non-appearance and remand the suit for further trial. One modification has been engrafted to this Rule in Chinna Asethu v. V. Kesavayva, 39 MLJ 697 : AIR 1920 Mad 962, where it has been held that where the defendant has filed an application under Order 9 Rule 13, and has been unsuccessful on the merits, it is not open to him to urge the same ground in the appeal preferred under Section 96(2). This decision has again been distinguished in Levval Sahib v. Ameenammal 45 MLJ 805 : AIR 1924 Mad 107. The same modification may, perhaps, apply in an appeal under Order 43 Rule 1 (i), namely that, where the judgment-debtor has preferred an application under Order 21 Rule 105 and that has been dismissed on merits, the point could not be urged again in the appeal under Order 43 Rule 1 (j). No such complication, however, arises in this case, because the judgment-debtor has not preferred an application under Order 21 Rule 105.

29. I think it is also pertinent to observe that Order 21 Rule 105 read with Rule 104 shows that it applies not merely to an application under Order 21 Rule 90, dismissed for default, but to any other application under the foregoing rules of Order 21. Similarly Order 43 Rule 1 (jj) is general and applies not merely to an application under Order 21 Rule 90, which had been dismissed for default and is sought to be restored by the application under Order 21 Rule 105 (1). The point to be noted is that Order 43 Rule 1 (jj), is, therefore, a general provision, whereas Order 43 Rule 1 (j) is a special provision dealing with an appeal in respect of an application under Order 21 Rule 90. In such a case the Rule of construction is that, if tbe wording of the special provision would permit an appeal being entertained even where the application under Order 21 Rule 90 is dismissed for default, the width and scope of the provision cannot be curtailed by the circumstance that there is in existence a general provision in Order 43 Rule (1) (jj), which in turn would entail an application under Order 21 Rule 105.

30. There seems to be no decided case on this point of this High Court after the amendments made by P. Dis. 397 of 1945 or of the Andhra Pradesh High Court, where also the additions made by P. Dis. 397 of 1945 are in force. The decision in : AIR1959AP667 does not touch the point and is only an authority for the position that, where an application under Order 21 Rule 90 is not admitted for failure to furnish the security as required, an appeal would lie under Order 43 Rule 1 (j), in such a case an application under Order 21 Rule 105 may not lie. Similarly, the decision in Sambamurthi v. Sabatho. : AIR1963AP127 , merely shows that an application will lie Minder Order 21 Rule 105, if the application under Order 21 Rule 90 is dismissed for default, but does not consider the question of appealabi-lity of the order dismissing an application for default. No doubt, Rampratap v. Triloknath, : AIR1957Pat465 is a case, where it was held that an appeal would lie under Order 43 Rule 1 (j) where the application under Order 21 Rule 90 was dismissed for non-prosecution. But in Patna no provision has been introduced corresponding to Order 21 rules 104 and 105 and Order 43 Rule 1 fjj). The decision will, therefore, only be an authority for the position which obtained in Madras before the amendments were effected by P, Dis. 397 of 1945.

31. For the foregoing reasons I hold that the learned Subordinate Judge in holding that the appeal before him did not lie had failed to exercise a jurisdic-tion vested in him and, therefore, this court should interfere under Section 115(b) C. P. C. It need hardly be pointed out that the learned Subordinate Judge was not justified in discussing the merits of the application, E. A. 352 of 1965, when an opportunity had not been afforded to the petitioner to substantiate his allegations. The learned Subordinate Judge did not do justice to the petitioner when he observed:

'The petition was dismissed only for tbe absence of the petitioner on 14-7-1965 for which no proper ground was alleged'.

He did not at all consider the question whether the reason put forth in the grounds of appeal was true or not, namely, that the petitioner's learned counsel was engaged before the Assistant Sessions Judge, Vellore, in a sessions case, and representations were made for adjournment on that ground. Since there are not sufficient materials before me to decide that question, the appeal has to be remanded to the learned Subordinate Judge for deciding that question. If he finds that it is true that the petitioner's counsel was engaged before the Assistant Sessions Judge in a sessions case, he should set aside the order of dismissal for default of E. A. 352 of 1965 on some terms which will be in his discretion. If, however, he finds, that the reason put forth is not true, then the order of dismissal of E. A. 552 of 1965 for default should be confirmed. The order of the learned Subordinate Judge is set aside and he is directed to restore the appeal C. M. A. No. 146 of 1965 to his file and dispose it of according to law and in the light of the directions contained herein. The parties will bear their own costs in this revision petition.

32. Sri K. S. Champakesa Alyangar, the learned counsel, for the respondents, has asked for leave to appeal under Clause 15 of the Letters Patent. Considering that the point is not covered by any previous authority of this court, I should certainly have given leave to ap-peal, but it is clear from Clause 15 ofl the Letters Patent that there can be no appeal at all under that provision against, a decision rendered in a civil revision; petition. It is immaterial that originally this proceeding was as a civil miscellaneous second appeal; what matters isthat I have converted it into a civilrevision petition and I am disposing itof as a civil revision petition. Indeed,there is a direct decision of a Bench ofthis court in N. G. Rajagopalan v.Ramalingam, L. P. A. No. 55 of 1967D/-6-11-1967 (Mad), to the above effect.There I converted the civil miscellaneousappeal into a civil revision petition andallowed the civil revision petition. TheLetters Patent Appeal was held to benot maintainable because the order waspassed after converting the appeal intoa civil revision petition.


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