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Dasarathy Chakravarty Vs. Maharaja Khaunish Chandra Ray - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1927Cal938
AppellantDasarathy Chakravarty
RespondentMaharaja Khaunish Chandra Ray
Cases ReferredHari Charan Ghose v. Manmatha Nath Sen
Excerpt:
- 1. the appeal raises the question whether order 9, rule 9, civil p.c. is applicable to an application made for setting aside a sale in execution of a decree under order 21, rule 90, civil p.c. the question arises in this way : the appellant before us presented an application for setting aside a sale under order 21 rule 90. on the date fixed for the hearing of the case the applicant was not ready with his evidence and he asked for time. time was granted on one occasion but on the next occasion he was still not ready with his evidence. further time was asked for and the learned subordinate judge refused to grant time and thereupon the pleader for the applicant stated that he had no evidence and no further instructions. upon that the application for setting aside the sale was rejected for.....
Judgment:

1. The appeal raises the question whether Order 9, Rule 9, Civil P.C. is applicable to an application made for setting aside a sale in execution of a decree under Order 21, Rule 90, Civil P.C. The question arises in this way : The appellant before us presented an application for setting aside a sale under Order 21 Rule 90. On the date fixed for the hearing of the case the applicant was not ready with his evidence and he asked for time. Time was granted on one occasion but on the next occasion he was still not ready with his evidence. Further time was asked for and the learned Subordinate Judge refused to grant time and thereupon the pleader for the applicant stated that he had no evidence and no further instructions. Upon that the application for setting aside the sale was rejected for default of the applicant. This order of dismissal was passed on the 23rd August 1924. On the 20th September 1924 one of the judgment-debtors put in an application purporting to have been made under Order 9, Rule 9, Civil P.C. for restoration of the application for setting aside the sale. The learned Subordinate Judge rejected the application on the ground that that rule did not apply to such an application. The judgment-debtor appeals to this Court and a preliminary objection has been taken to the competency of the appeal on the ground that there was no appeal under the Code against an order made by the Subordinate Judge. In answer to that objection the learned-vakil for the appellant relies on Order 43, Rule 1, Clauses (c) and (j), Civil P.C. Clause (c) only refers to an order rejecting an application for setting aside the dismissal of a suit. That clause, therefore, does not apply in terms.

2. It is contended that the order falls under Clause (j), and reliance has also been placed on the case of Kali Kanta Chuckerlutty v. Shyam Lal Das Basu [1916] 25 C.L.J. 163, in support of an appeal. This appeal is not against the order of dismissal for default which might fall within Clause (j) of that rule. But this appeal is against the order refusing to set aside the dismissal for default. It is contended on behalf of the respondent that on the authority of the case of Jung Bahadur v. Mahadeo Prosad [1903] 31 Cal. 20, which was decided under the old Code, no appeal lies against such an order. We think that the contention of the respondent should be accepted that there is no appeal against an order refusing to set aside an order of dismissal for default of an application such as this. Then with regard to the main question whether Order 9, Rule 9, applies to such a case as this, we are asked to set aside the order in the exercise of our revisional jurisdiction. We are of opinion that the case of Thakur Pershad v. Sheikh Fakirulla [1894] 17 All. 106 is really decisive of the question. There, their Lordships in dealing with the contention that by virtue of Section 647 of the Code of 1882, Section 373 of the Code applied to execution proceedings observed as follows:

The suggestion is that it is applied by force of Section 647. But the whole of Chap. 19 of the Code, consisting of 121 sections, is devoted to the procedure in executions, and it would be surprising if the framers of the Code had intended to apply another procedure, mostly unsuitable, by saying in general terms that the procedure for suits should be followed as far as applicable. Their Lordships think that the proceedings spoken of in Section 647 include original matters in the nature of suits such as proceedings in probates, guardianships, and so forth, and do not include executions.

3. Their Lordships approved of the case of Bunko Behary Gangopadhya v. Nil Madhub Chuttopadhya [1891] 18 Cal. 635, where the matter is stated in equally clear terms. The section of the present Code corresponding to the old Section 647, is 141, which runs thus:

The procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

4. This section, it may very well be assumed, was enacted in these terms to give proper effect to the decision of their Lordships in the case of Thakur Pershad v. Fakirullah [1894] 17 All. 106. If it was intended that proceedings relating to suits should be applicable to proceedings under Order 21 of the Code or similar proceedings it might have been stated that the procedure with regard to suits would be applicable to other proceedings under the Code. It seems, therefore, that the clear intention of the section is that the procedure relating to suits would not apply to proceedings relating to execution, the procedure with regard to which is laid down in Order 21 of the Code itself. In the case of Hari Charan Ghose v. Manmatha Nath Sen [1913] 41 Cal. 1, Sir Lawrence Jenkins, Chief Justice, held that Order 9, Rule 13, Civil P.C. 1908 was not applicable to a proceeding under Rules 100 and 101 of Order 21 of the Code and, in delivering the judgment of the Court he referred to the case of Thakur Pershad v. Fakirullah [1894] 17 All. 106, as laying down the rule that the procedure referred to does not apply to execution proceedings. The argument urged on behalf of the appellant by Babu Rupendra Kumar Mitra is that the Privy Council decisions should be confined to an application for execution but the case of Hari Charan Ghose v. Manmatha Nath Sen [1913] 41 Cal. 1, is a clear answer to this contention It is urged on behalf of the appellant that there are conflicting cases on the point and the matter should be referred to a Full Bench for decision. But as we understand the decisions of the Privy Council the matter seems to be clearly laid down and we do not think that any reference to a Full Bench is called for. The appeal, therefore, is dismissed with costs. We assess the hearing fee at three gold mohurs.


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