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Kali Shettathi and anr. Vs. Shama Rau and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in37Ind.Cas.229
AppellantKali Shettathi and anr.
RespondentShama Rau and ors.
Cases Referred and Dhonkal Singh v. Phakkar Singh
Excerpt:
civil procedure code (act v of 1908), order xliii, rule 1 (w), order xlvii, rule 7, order ix, rule 9 - execution application, dismissal of, for default--restoration--review of restoration order and its cancellation--subsequent review of order for dismissal for default, whether lies. - - 7. the appeal against appellate order and civil revision petition fail and are dismissed with costs, one set only allowed, those in the civil revision petition......obtained its restoration under order ix, rule 9, of the coda of civil procedure, by presenting execution application no 86 of 1913. 2. the appellants, the judgment-debtors, then applied to the district munsif in execution application no. 39 of 19 3 to review his order of restoration, on the ground that if had been passed without notice to them. he granted a review and set aside his order of restoration. 3. respondents then in execution application no, 52 of 1913 applied for a review of the original order dismissing the execution petition for default. the district munsif granted a review and set aside the dismissal in the order, which is the subject of the present proceedings. the district judge dismissed the appellants' appeal with reference to order xliii, rule 1 (u) and order.....
Judgment:

1. The respondent are desree-holdars whose application for execution was originally dismissed for default. They obtained its restoration under Order IX, Rule 9, of the Coda of Civil Procedure, by presenting Execution Application No 86 of 1913.

2. The appellants, the judgment-debtors, then applied to the District Munsif in Execution Application No. 39 of 19 3 to review his order of restoration, on the ground that if had been passed without notice to them. He granted a review and set aside his order of restoration.

3. Respondents then in Execution Application No, 52 of 1913 applied for a review of the original order dismissing the execution petition for default. The District Munsif granted a review and set aside the dismissal in the order, which is the subject of the present proceedings. The District Judge dismissed the appellants' appeal with reference to Order XLIII, Rule 1 (u) and Order XLVII, Rule (7), of the Code of Civil Procedure.

4. We have before us an appeal and a revision petition, but the conclusion we have come to on the merits, makes it unnecessary for us to decide whether the former will lie.

5 Both are argued, on the ground that the District Mansif's order on Execution Application No. 52 of 19i3 was passed without jurisdiction because it offended against Order XLVII, Rule 9, of the Code of Civil Procedure, being in effect an order reviewing the previous order refusing to restore the original execution petition, which he passed after granting a review on Execution Petition No. 39 of 1913.

6. In order to deal with this argument, close attention to the coarse of the proceedings is necessary. Execution Application No. 39 of 1913 was disposed of on the legitimate grounds that (1) Order IX, Rule 9, of the Code of Civil Procedure required notice to the other side, which had not been given; (2) Order IX does not apply to execution proceedings at all [vide, Hajrat Akrammssa Begam v. Valiulmssa, Begam 9 Ind. Dec. 795 and Dhonkal Singh v. Phakkar Singh 15 A.d 84: 7 Ind. Dec. 770, authorities which have not lost their validity]. Under the present Code (1) would no doubt have justified only a re-hearing after notice had been given. Bat (2) was a sufficient ground for the lower Court's re-call of its order of restoration at once, the result being only that Execution Application No. 36 of 1913 stood dismissed. It is not possible to enlarge the scope of this order by implication and hold that it in any way affected the order of dismissal of the original execution petition, since that order had never been the subject of any subsequent proceedings. In fact the whole effect of the order on Execution Application No. 39 of 1913 was that the proceedings subsequent to the order of dismissal were a nullity. There is accordingly no foundation for the contention that Execution Application No. 52 of 1913 which in terms asked for a review only of the original order of dismissal, was for a review of the later order on Execution Application No. 39 of 1913 or that the order passed on the former was for a review of the latter.

7. The appeal against appellate order and civil revision petition fail and are dismissed with costs, one set only allowed, those in the civil revision petition.


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