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Narayana Chettiar and anr. Vs. P.C. Muthu Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in97Ind.Cas.1008; (1926)51MLJ219
AppellantNarayana Chettiar and anr.
RespondentP.C. Muthu Chettiar and ors.
Cases ReferredGadi Neelaveni v. Marappareddigari Narayana Reddi
Excerpt:
c.p.c. (act v of 1008), section 151, order ix, rule 9, order xlvii, rule 4, clause 2, order xxi, rule 57 - execution application--dismissal for default--restoration, legality of--application, to restore, whether can be treated as one for review--order made without notice to opposite party, whether illegal or merely irregular--review, grounds for--restoration, whether permissible under inherent powers of court--dismissal of execution application for failure to furnish required information, whether dismissal for default of appearance. - .....the execution application to file, did not issue notice to the other side. under order xlvii, rule 4 notice to the other side is imperative. clause 2(a) is as follows:no such application shall be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the decree or order, a review of which is applied for. 4. the question is whether an order passed without notice is a nullity or only an irregular order which the court had jurisdiction to pass. the district judge has relied upon janki nath hore v. prabhasini dasi 30 ind. cas. 893 : 3 c.178 : 22 cri.l.j. 99 : 19 c.w.n. 1077 as supporting his view that the order of the subordinate judge was an order under order xlvii. in that case it was held 'where an appeal was summarily dismissed by a.....
Judgment:

1. The first respondent herein filed an application on 23rd February, 1920, for the execution of the decree in O.S. No, 14 of 1908. The application after several adjournments came on for hearing on 11th October, 1921, when, owing to the ab3ence of the decree-holder's Pleader, it was dismissed. The decree-holder's Pleader appeared before the Court sometime after and the Court restored the application to file without notica to the opposite party. On the same day, an application was made by the decree-holder for an amendment of the execution application. When the amendment application came on for hearing, the judgment-debtors contended that the order restoring the petition to file was illegal and that the amendment petition should not be allowed. The Subordinate Judge of Ramnad held that Order IX, Rule 9, C.P.C. was not applicable to execution proceedings and that the order restoring the petition to file, if treated as an order under Order XLVII, was illegal as the other party was not given notice of the application. In the result, he dismissed the petition for execution as well as the application for amendment. On appeal the District Judge held relying on Janki Nath Hore v. Prabhasini Dasi 30 Ind. Cas. 893 : 3 C.178 : 22 C.L.J. 99 : 19 C.W.N. 1077 that the Court has power under Order XLVII, to restore an application dismissed for default of appearance of the applicant and that even if it was not an order under Order XLVII, it should be treated as one made under Section 151. He set aside the order of the Subordinate Judge and remanded the execution application for disposal according to law. Defendants Nos. 5 and 7 have preferred this appeal against the order of the District Judge.

2. The first contention raised by Mr. C.S. Venkatachariar for the appellants is that the Court had no power to restore an application to file which was dismissed for default as Order IX, C.P.C., did not apply to execution proceedings. We have recently held in a case reported as Kalliakkal v. Palani Koundan : AIR1926Mad412 that Order IX, C.P.C., did not apply to execution proceedings. Mr. Patanjali Sastri who appears for the first respondent does not challenge the correctness of this decision and concedes that Order IX is not applicable to execution proceedings. The order of the Subordinate Judge was not, therefore, one passed under Order IX, Rule 9.

3. It is next contended that the order restoring the execution petition to file should not be treated as an order made in review of the order dismissing the application. The Subordinate Judge when he restored the execution application to file, did not issue notice to the other side. Under Order XLVII, Rule 4 notice to the other side is imperative. Clause 2(a) is as follows:

No such application shall be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the decree or order, a review of which is applied for.

4. The question is whether an order passed without notice is a nullity or only an irregular order which the Court had jurisdiction to pass. The District Judge has relied upon Janki Nath Hore v. Prabhasini Dasi 30 Ind. Cas. 893 : 3 C.178 : 22 Cri.L.J. 99 : 19 C.W.N. 1077 as supporting his view that the order of the Subordinate Judge was an order under Order XLVII. In that case it was held 'Where an appeal was summarily dismissed by a Division Bench of this Court and such order was ultimately set aside on review by .the said Bench on an ex parte application without notice to the respondents, that the last order was valid even in the absence of such notice.' The learned Judges held that the respondent was not 'the opposite party' within the meaning of Rule 4, Clause (2)(a), interested to appear and support the order of dismissal when the only order sought to be substituted therefor was that the appeal be heard in his presence. With very great respect we are unable to follow the reasoning of the learned Judges. When an appeal is dismissed the decree of the lower Court is left undisturbed and the respondent is entitled to the benefit of such dismissal, and when the dismissal is sought to be set aside, it is he that is interested in supporting the order of dismissal. They conceded that an order of review cannot be made without previous notice to the person interested in supporting the order sought to be reviewed, but their view was that there was no opposite party when the Court was moved to set aside the order of dismissal for default. This case was followed by another Bench of the Calcutta High Court in Official Trustee of Bengal v. Benode Behari Ghose Mal : AIR1925Cal114 . In that case though the learned Judges observe that they prefer to follow Janaki Nath Hore v. Prabhasini Dasi 30 Ind. Cas. 893 : 3 C.178 : 22 C.L.J. 99 : 19 C.W.N. 1077 in preference to a previous decision in Abdul Hakim Chowdhury v. Hem Chdndra Das 30 Ind. Cas. 165 : 42 C.433 they rest their decision upon the practice obtaining in the Calcutta High Court for forty years under which an appeal summarily dismissed under Order XLI, Rule 11, is set aside on review by the same Bench. These two cases cannot be authority for the position that no notice is necessary in the case of a review of an order under Order XLVII, for the practice of the Calcutta High Court was rightly or wrongly to set aside a summary order of dismissal on an application made for that purpose. In Abdul Hakim Chowdhury v. Hem Chandra Das 30 Ind. Cas. 165 : 42 C.433 it was held that non-compliance with Rule 4 of Order XLVII, rendered the granting of an ex parte application for review a nullity. Holmwood, J., observes at page 439 Page of 42 C.--[Ed.]:

It is clear that the non compliance with Rule 4 of Order XLVII, renders the granting of this application for review, which was prejudicial to the respondent, a nullity and that such an application could not be granted without previous notice.

5. This judgment was concurred in by Chapman, J.

6. Where the law requires that a certain formality should be complied with before an order could be made, it is not open to the Court to ignore the clear provision of the law and pass an order without complying with it. The notice to the opposite party is imperative under Rule 4, Clause (2)(a). It is urged by the respondent that when the Subordinate Judge restored the petition to file, the appellants should have preferred an appeal against that order and when a remedy is open to a party against an irregular order made by a Court it should not be considered to be a nullity; for the Court has power to review its own order and if it reviews it irregularly the party affected by the order should appeal against it and Rule 7(6) provides for an appeal if the Court granting the review-contravenes the provisions of Rule 4. The question is not whether the party to an illegal order has a remedy or_ not. If a Court does something which it is not authorised by law to do, that order has no legal force. Such an order is illegal and not merely an irregular one and a party is not bound by the illegal order. In Surajpal Pandey v. Utim Pandey 63 Ind. Cas. 99 : (1921) Pat. 337 : 6 P.L.J. 625 : 3 P.L.T. 117 : A.I.R. 1922 Pat. 281 the learned Chief Justice and Coutts, J., declined to follow the case in Janaki Nath Hore v. Prabhasini Dasi 30 Ind. Cas. 893 : 3 C.178 : 22 C.L.J. 99 : 19 C.W.N. 1077 and held that 'where an appeal has been dismissed for default it cannot be restored under Order XLI, Rule 19, which has no application to such a case; nor can it be restored under Order XLVII, Rule 4, Clause (2) without notice to the opposite party', and 'if the appeal is restored without such notice and disposed of without the opposite party becoming aware of the orders of dismissal or restoration, that party is entitled, as soon as the matter has been drawn to its notice even in second appeal, to a hearing.'

7. The order of the Subordinate Judge restoring the appeal to file cannot be considered to be a final order and the opposite party on coming to know of the order could urge any objection which it was open to him to urge if he had notice of the petition for restoration. This was clearly laid down by the Privy Council in Krishnasami Pandikondar v. Ramasami Chettiar 43 Ind. Cas. 493 : 41 M. 412 : 34 M.L.J. 63 : 4 P.L.W. 54 : 16 A.L.J. 57 : 7 L.W. 156 : 23 M.L.T. 101 : Cri.L.J. 253 : 2 P.L.R. 1918 : 22 C.W.N. 481 : 1918 20 Bom. L.R. 511 : 11 Bur. L.T. 121 : (1918) M.W.N. 906 : 45 I.A 25 (P.C.). In that case Sankaran Nair, J., without notice to the respondent excused the delay in filing the appeal and admitted it. When it came on for hearing after notice an objection was taken before' the Division Beach which heard it as being out of time. The Division Bench after an examination of the affidavits filed on both sides dismissed the appeal as provided by Section 4 of the Limitation Act. It was contended before the Privy Council that the order of Sankaran Nair, J., was final and that the Division Bench had no jurisdiction at the hearing of the appeal to re consider the question whether the delay was excusable. Their Lordships observe at page 416 Page of 41 M.--[Ed.]:--'This order of admission was made not only in the absence of Kamaswami Chettiar, the contesting respondent, but without notice to him. And yet in teroi3 it purported to deprive him of a valuable right, for it put in peril the finality of the decision in his favour so that to preclude him from questioning its propriety would amount to a denial of justice. It must, therefore, in common fairness be regarded as a tacit term of an order like the present that though unqualified in expression it should be open to re-consideration at the instance of the party prejudicially affected; and this view is sanctioned by the practice of the Courts in India.'

8. The order of the Subordinate Judge, therefore, restoring the petition could not be considered to be a final order and is open to the objection of the other side. On any ground it was open to it if notice had been issued.

9. There are at least two stages in a review application. When a review application is filed, the Court gives notice to the opposite party and on hearing the opposite party if it considers there are grounds for re-opening the case it grants the application and if after review it sees reason to alter the order already passed, it modifies it. Against the order granting review there is an appeal under Rule 7 of Order XL VII and against the final order passed after review there is also an appeal. Why should a party be deprived of the right of appeal by his not being given notice when the Court grants an application for review? The Lahore High Court in Firm Gopal Mal-Ganda Mal v. Hara Chand 75 Ind. Cas. 656 : A.I.R. 1923 Lab. 303 holds the view that 'an order granting an application for review of an order dismissing a suit in default is not illegal merely because notice of the application was not given to the opposite party, if that party has been given every opportunity to raise any objections that he could raise, and was, therefore, in no way prejudiced by the non-issue of notice to him.' Though the party against whom an order is made without notice is entitled to object to it afterwards, it is not competent to a Court to omit to give notice to the opposite party when the law requires that notice shall be given of an application before it is granted.

10. The order made by the Subordinate Judge restoring the execution application to file cannot be considered on the merits as an order under Order XLVII, C.P.C. Though the petition mentioned Order XLVII, Rule 1, Section 151 and Order IX, Rule 9 yet the affidavit did not set out any grounds which would justify a review of the order. The absence of a Pleader is not a ground for review. The grounds for review are set out in Order XLVII, Rule 1 and the Privy Council has ruled that no Court is justified in reviewing an order made by it for any ground other than those mentioned in Order XLVII or grounds which are similar to the grounds specifically mentioned therein, In Chhajju Ram v. Neki : (1922)24BOMLR1238 a Bench of the Lahore High Court reviewed an order made by another Bench. Viscount Haldane in delivering the judgment of their Lordships observed: 'They think that Rule 1 of Order XLVII must be read as in itself definitive of the limits within which review is today permitted, and the reference to practice under former and different Statutes is misleading. So construing it they interpret the words 'any other sufficient reason' as meaning a reason sufficient on grounds at least analogous to those specified immediately previously.'

11. The order of the Subordinate Judge restoring the appeal to file cannot be treated as an order under Order XLVII, Rule 1.

12. It is next contended for the respondent that the Court has power under Section 151 to correct its own errors or to pass an order which it thinks proper in the interests of justice. In Bholu v. Ram Lal 60 Ind. Cas. 720 : 2 L. 66 : 3 U.P.L.R. 29 it was held that,' in the exercise of its inherent power, expressly recognised by Section 151 of the Code, a Court can restore an application for execution after it has dismissed . it for default, and should do so, notwithstanding that the applicant has an alternative remedy by making a second application for execution, if he satisfies the Court that it should exercise its inherent jurisdiction ex debito justitim.' In that case reliance was placed upon Debi Bakhsht Singh v. Habab Shah : (1913)15BOMLR640 as supporting the view taken by it. In Debi Bakhsh Singh v. Habab Shah : (1913)15BOMLR640 the plaintiff was dead and the Court not being aware of his death dismissed the suit for the non-appearance of the plaintiff. The Privy Council held that the dismissal was an abuse of the process of the Court. Their Lordships observe at page 337:

Quite apart from Section 151, any Court might have rightly considered itself to possess an inherent power to rectify the mistake which had been inadvertently made.

13. Where the Court passes an order inadvertently or without being aware of certain facts which should have been, brought to its notice, it has power to correct an error committed by it, not owing to the negligence of a party, but owing to its not being aware of certain facts. What applied to a person who makes default in appearing before the Court cannot apply to a deceased person for he cannot appear before the Court and a Court has no power to dismiss a suit for default when the plaintiff is dead, and if it does without being aware of the fact, it can correct the wrong order made by it.

14. In this case it cannot be said that the application was dismissed for default of appearance. The decree-holder was asked to furnish certain information to the Court to enable it to proceed with the execution. He having failed to furnish the information or produce the necessary papers for proceeding with the execution, has brought himself within Order XXI, Rule 57 and the dismissal of the application cannot, therefore, be considered to be a dismissal for default of appearance. It is strongly urged by Mr. Patanjali Sastri that the respondent would lose the benefit of his decree for any subsequent application would be barred by the twelve years' rule and, therefore, the Court should use its inherent power to restore the application to remedy the wrong. The decree-holder can always file a fresh application for execution if the previous one is dismissed and the fact that a fresh application would be barred by limitation would not give jurisdiction to the Court which it does not otherwise possess. With very great respect we are unable to agree with the learned Judge who decided Bholu v. Ram Lal 60 Ind. Cas. 720 : 2 L. 66 : 3 U.P.L.R. 29 that the inherent power of the Court should be invoked in cases in which the second application may be barred by limitation. In Ritu Kuer v. Alakhdeo Narain Singha 47 Ind. Cas. 154 : 4 P.L.J. 330 : (1918) Pat. 265: 5 P.L.W. 208 it was held that the Court should not use its inherent power for the purpose of restoring execution cases. Suhrawardy, J., in Saradindu Mukerjee v. Girish Chandra Tewari : AIR1925Cal184 takes the view that 'if an execution case is erroneously dismissed for default and the decree-holder applies for the restoration of the case by way of review, the application for restoration was one under Section 151 of the C.P.C., and the mere fact that it was also described as an application for review did not give the judgment-debtor a right of appeal against the order of restoration.' The Bombay High Court in Sonubai Baburao v. Shivajirao Krishnarao 60 Ind. Cas. 919 : 45 B. 648 : 23 Bom. L.R. 110 held that ' Where an application is made to re-admit an appeal dismissed for default, it was open to the Court to exercise its inherent powers to deal with the application under Section 151 of the C.P.C., and make an order to the effect for the ends of justice or to prevent abuse of the process of the Court, without any reference to the period of limitation fixed for application to re-admit appeals or to restore any other proceeding dismissed for default.' When an application is granted under Section 151 of the C.P.C., the party affected by the order has no right of appeal as observed by Suhrawardy, J., in Suradindu Mukerjee v. Girish Chandra Tewari : AIR1925Cal184 should the Court use such powers in such a way as to give an unfair advantage to one party over the other because it thinks that the ends of justice do require it. Justice should be administered according to law and procedure. It may be that in administering the law, the Court may feel that one party gains an unfair advantage over the other. But it is not open to a Court to ignore the procedure laid down for its guidance and grant reliefs when it thinks such a relief should be granted without following the procedure laid down for its conduct. If the provisions of Section 151 are given the extended interpretation ,which some Courts are prepared to give them, the Courts may overlook the rest of the Procedure Code whenever it considers that the ends of justice do require that a certain order should be passed. Section 151 enables a Court to make such orders as may be necessary for the ends of justice and to prevent the abuse of the process of the Court. The Law of Limitation works hardship upon persons who have legitimate claims against their opponents, but the Legislature has enacted the Law of Limitation; and it would not be right for the Court to overlook the Law of Limitation on the .ground that the claim is a bona fide one and the defence on the ground of limitation is immoral. When the law lays down certain procedure for parties who are affected by an order, the mere fact that the Law of Limitation steps in and prevents, the party from claiming relief under the procedure is not sufficient justification for the Court to grant a relief under Section 151, In this connection reference may be made to Gadi Neelaveni v. Marappareddigari Narayana Reddi 53 Ind. Cas. 847 : 43 M. 94 : 37 M.L.J. 599 : 26 M.L.T. 377 : 10 L.W. 606 : (1920) M.W.N. 19 (F.B.) There Oldfield, J., observed at page 101 Page of 43 M.--[Ed.] ' that our Courts possess inherent power is recognised in Section 151 of the C. P. C. But the exercise of the power in the particular form in which it is invoked must be justified in each, case in the manner authorised by authority... and generally the legitimacy of its exercise must be tested with reference to the principles, which authority has prescribed.' In that case it was held 'that a Court has no power, apart from the provision of Order IX, Rule 13 of the C.P.C., to set aside an ex parte decree passed by itself.' Though a Court may feel that an ex parte decree was improperly passed, it cannot set it aside by invoking its power under Section 151. The application to set aside an ex parte decree can only be granted if the conditions laid down in Order IX, Rule 13 are satisfied. In Somayya v. Subbamma (15) it was held that > if the Court sees sufficient reason to grant the application it could do so, but that decision was overruled by the decision in Gadi Neelaveni v. Marappareddigari Narayana Reddi (14) We hold that the order restoring the execution application to file cannot be said to be an order passed under Section 151. The first respondent could have presented a fresh application for execution, but owing to the Law of Limitation he is precluded from doing so and that would not give jurisdiction to a Court to invoke the aid of Section 151. Mr. Patanjali Sastri very strongly urged that his client would lose about Ra. 5,000.

15. However dishonest the conduct of the appellants might have been, they are entitled to the relief which the law gives them. We, therefore, with much regret allow the appeal but in the circumstances disallow the costs of the appeal.


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