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K. Venkata Narasimha Rao Vs. Hemadu Suryanarayana - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in92Ind.Cas.802
AppellantK. Venkata Narasimha Rao
RespondentHemadu Suryanarayana
Cases ReferredThakur Prasad v. Fakir Ullah
Excerpt:
civil procedure code, (act v of 1908), section 141, order ix - suit, application to restore, dismissal of, for default--petition to set aside dismissal, maintainability of. - .....that section 647 of the code of 1882, which is equivalent to section 141 of the present code, included original matters in the nature of suits such as proceedings in probates, guardianships and so forth and did not include executions. the question at issue in that suit was whether execution petitions were included in that section, and it was definitely laid down that they were not so included. what was held to be included were original matters in the nature of suits but this statement is not exhaustive. it is argued that an application under order ix is not an original matter in the nature of a suit. it certainly is not a petition in a suit, for the suit is n-o longer on the file. it relates to a question, quite independent of the suit and one which has to be determined on evidence.....
Judgment:

Phillips, J.

1. The only question that arises here is whether Order IX applies only to suits or whether, by reason of Section 141, it also applies to applications made under Order IX itself. In this case an application to restore a suit was dismissed for default and a subsequent petition was filed to set aside that dismissal. The subsequent petition has been allowed and the original petition under Order IX is now under enquiry.

2. The contention for the appellant is that the Court has no jurisdiction to treat the second application as one to which Order IX is applicable. In Thakur Prasad v. Fakir Ullah 17 A. 106 : 5 M.L.J. 3 : 22 I.A. 44 . it was laid down by the Privy Council that Section 647 of the Code of 1882, which is equivalent to Section 141 of the present Code, included original matters in the nature of suits such as proceedings in probates, guardianships and so forth and did not include executions. The question at issue in that suit was whether execution petitions were included in that section, and it was definitely laid down that they were not so included. What was held to be included were original matters in the nature of suits but this statement is not exhaustive. It is argued that an application under Order IX is not an original matter in the nature of a suit. It certainly is not a petition in a suit, for the suit is n-o longer on the file. It relates to a question, quite independent of the suit and one which has to be determined on evidence as to matters which would be quite irrelevant to the suit. In this sense it seems to me to come within the meaning of the Privy Council's observations that Section 647 includes original matters in the nature of suits. This view has been taken by the Calcutta High Court in Bepin Behari Saha v. Abdul Barik 35 Ind. Cas. 613 by the Lahore High Court in Abdul Rahman Shah v. Shahana 1 L.L.J. 188 and by the Bombay High Court in Lallabhai Vajeram v. Bai Magangavri 18 B. 59 : 9 Ind. Dec. 548. There is one authority to the contrary, i.e., Ramgulam Singh v. Sheo Deonarain Singh 51 Ind. Cas. 152 : 4 P.L.J. 287 which purports to follow a Full Bench of that Court re-poited at page 135 Page of 4 P.L.J.--[Ed.] of the same volume Bhubaneswar Prasad Singh v. Tilakdhari Lal 49 Ind. Cas. 617 : 4 P.L.J. 135 . but that Full Bench ruling in effect only repeated the decision of the Privy Council in Thakur Prasad v. Fakir Ullah 22 I.A. 44 : 6 Sar. P.C. J. 526 : 8 Ind. Dec. 393 (P.C.) where the question for determination was whether an execution petition would come under Order IX. The Division Bench which purported to follow the Full Bench ruling have not discussed the question at length but merely purport to follow the Full Bench which, with all respect, hardly covered the point in issue. With all respect, I agree with the rulings I have mentioned above and hold that the Court had jurisdiction to entertain this petition.

3. The revision petition must, therefore, be dismissed with costs.


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