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Haddu Sahu Vs. Haji Zamal Noor Mahomed Saheb - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1934Mad699; 153Ind.Cas.458
AppellantHaddu Sahu
RespondentHaji Zamal Noor Mahomed Saheb
Cases Referred and Arunachalam v. Veerappa Chettiar
Excerpt:
- ordermadhavan nair, j.1. i agree with the lower court's order. the decision in ramappa chettiar v. ekambara padayachi 1924 mad. 715 is no doubt in favour of the appellant but at the time when the learned judge decided that case the decision of the full bench in alaga sundaram v. pichuvier 1929 mad. 757 and arunachalam v. veerappa chettiar 1931 mad. 656 did not exist. after these decisions it will be difficult to say that an application under order 21, rule 58, civil p.c. is not a proceeding in execution. if it is such a proceeding then order 9, rule 13 will not apply. the full bench decisions also show that courts have no inherent power to set aside orders of dismissal for default passed in respect of such applications. the civil revision petition is dismissed with costs.
Judgment:
ORDER

Madhavan Nair, J.

1. I agree with the lower Court's order. The decision in Ramappa Chettiar v. Ekambara Padayachi 1924 Mad. 715 is no doubt in favour of the appellant but at the time when the learned Judge decided that case the decision of the Full Bench in Alaga Sundaram v. Pichuvier 1929 Mad. 757 and Arunachalam v. Veerappa Chettiar 1931 Mad. 656 did not exist. After these decisions it will be difficult to say that an application under Order 21, Rule 58, Civil P.C. is not a proceeding in execution. If it is such a proceeding then Order 9, Rule 13 will not apply. The Full Bench decisions also show that Courts have no inherent power to set aside orders of dismissal for default passed in respect of such applications. The Civil Revision Petition is dismissed with costs.


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