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Sarat Chandra Haldar Vs. Mitra Mukerjee and Co. and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1927Cal420
AppellantSarat Chandra Haldar
RespondentMitra Mukerjee and Co. and anr.
Excerpt:
- .....in agreement with the view which the learned munsif has taken. in an excellent judgment the learned munsif has dealt with this question of law and has arrived at a conclusion which is to the effect that order 9 is not applicable to cases where execution proceedings have been dismissed for default. he has also taken the correct view of the applicability of section 151 of the code of civil procedure. he, however, proceeds to observe, when considering the question as to whether in the present case, he should exercise his powers under that section or not, that he has considered the allegations made in applicant's petition and has examined the records of the case and that he has come to the conclusion that the facts of the case are not such that he should exercise the extraordinary.....
Judgment:

Mukerji, J.

1. As regards the main contention of the petitioner which is to the affect that Order 9, Rule 9 applies to the case of dismissal of execution proceedings for default, we are completely in agreement with the view which the learned Munsif has taken. In an excellent judgment the learned Munsif has dealt with this question of law and has arrived at a conclusion which is to the effect that Order 9 is not applicable to cases where execution proceedings have been dismissed for default. He has also taken the correct view of the applicability of Section 151 of the Code of Civil Procedure. He, however, proceeds to observe, when considering the question as to whether in the present case, he should exercise his powers under that section or not, that he has considered the allegations made in applicant's petition and has examined the records of the case and that he has come to the conclusion that the facts of the case are not such that he should exercise the extraordinary power which the Court possesses under Section 151 of the Code. I am somewhat doubtful as to the correctness of the view which the learned Munsif has taken, as regards the nature of the power which a Court possesses under Section 151 and I am not at all sure that that power can justly be said to be of an extraordinary nature. If the learned Munsif was of opinion that the power is of an extraordinary nature, then naturally, he would before excising that power, look for the presence of extraordinary circum stances which would justify its exercise, and that is really what he seems to have done. The power is inherent in every Court and if the are proper materials it has got to be exercised ex debito justitiae. It has been repeatedly laid down that the provision in Section 151 has been made for the purpose of allowing a Court to do that substantial justice for the administration of which alone the Court exists, and in matters about which the Code is silent. Of course, the power cannot be exercised to do something which is prohibited by the Code or is repugnant either to the letter or the spirit of the Code. In the present case the learned Munsif took the view that the power was an extraordinary one, and that because he could not find any circumstance on an examination of the record of the case nor any allegation in the applicant's petition which would justify the exercise of that power he has refused to give relief to the applicant. An examination of the record, however discloses very little that is relevant and as regards the allegations in the applicant's petition there has been no enquiry as to their truth or otherwise. I am of opinion that once it is conceded that Court may proceed under Section 151 the Court must in order to arrive at a conclusion whether relief should or should not be granted, inquire into the allegations unless the Court is of opinion that the allegations even, if true, would not justify the Court's interference. I have examined the contents of the petition that was filed on behalf of the petitioner in the present case and I am of opinion that those allegations, if they would certainly form a ground for the exercise of the Court's power under Section 151 It appears also that four witnesses were present on behalf of the petitioner on the 20th of April 1926, the day on which the matter was heard by the learned Munsif, bit those witnesses were not examined. I am of opinion that the allegation contained in that petition she lid be properly inquired into and that on the conclusions at which the Court will arrive as to the truth or otherwise of those alienations will depend the determination of the question whether it will exercise the inherent power which the law provides for. In my judgment, therefore the order passed by the Minsif as complained of in this Rule should be set aside and the case sent back to his Court so chat a proper inquiry may be made with regard to the allegations contained in the petitioner's position to which I have referred and then after hearing the parties the case will be dealt with and disposed of in accordance with law.

2. The rule should thus be made absolute. We make no order as to costs.

Grabham, J.

3. I agree and have only a few words to add. The exercise of the Court's jurisdiction under Section 151 of the Code of Civil Procedure is purely a matter of discretion, and speaking for myself I should not ordinarily be in favour of interfering with the exercise of that discretion unless a strong case has been made out. When, however, it has been recognized, as it has been in the Court below, that the case is one for the exercise of the residuary power of the Court under that section, I think that the learned Munsif should have inquired into the allegations which were made on behalf of the petitioner, and should have examined the witnesses who were present Court.

4. I accordingly concur in the order which my learned brother has made.


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