Authored By : Ernest Edward Fletcher, Thomas WilliamRichardson

Ernest Edward Fletcher, J.

1. I agree in the result of the judgment about to bedelivered by Mr. Justice Richardson.

Thomas William Richardson, J.

2. The appellant is a decree-holder and the respondent ishis judgment-debtor. The appellant having applied for the execution of hisdecree by the attachment and sale of the respondents holding, the latterpreferred an objection on the ground that the holding was a raiyati holding, nottransferable without the consent of the landlord. The petition of objection wasfiled on the 20th February 1914. Notice of it was duly given to thedecree-holder and the matter was set down for hearing. There were severaladjournments, the last being to the 18th July 1914. On that date the petitionerdid not appear and the petition was dismissed for default.

2. The petitioner then applied to have the order ofdismissal set aside. The application purported to be made under Rule 9 of OrderIX. On the 24th October 1914 the learned Subordinate Judge held that the orderhaving been made in the course of proceedings in execution, the case did notcome within the purview of Order IX, He refused, therefore, to set the orderaside. But he further held that notwithstanding the order, the respondent wasat liberty to file a fresh petition to precisely the same effect as theoriginal petition. The respondent having done so, his objection was allowed andthe holding was released from the attachment.

3. Now it is obvious that if this is the law, ajudgment-debtor would be in a position to file an unending series of objectionson the same ground to the execution of the decree. By neglecting to appear onthe date fixed for the hearing of a petition, he would obtain the right topresent another. Any order of dismissal for default would be nugatory. TheCourt would be powerless and the decree-holder might be kept at bay for anindefinite time. The position, therefore, requires some examination.

4. It can hardly be doubted that the proceedings in questionwere proceedings in execution, and there is authority in this Court for theproposition that Section 141 of the Code has no application to proceedings inexecution and that in consequence such proceedings are outside the scope of thegeneral provisions of the Code relating to suits, such for instance as thosecontained in Order IX. In this connection the term suits is distinguishedfrom proceedings in execution, which are proceedings in suits, in the nature ofinterlocutory proceedings. This view appears to be founded on such decisions ofthe Privy Council as those in Ram Kirpal v Rup Kuari 11 I. A. 37 : 6 A. 269 :4, Sar. P. C. J. 489 : 3 Ind. Dec. (N.S) 718, Beni Bam v. Nanhu Mal 11 I. A.181 : 7 A. 102 : 4 Sar. P. C. J. 564 : 4 Ind. Dec. (N.S) 138 and Thahur Prasadv. Fakir-Ullah 22 I. A. 44 : 17 A. 106 : 5 M. L. J. 3 : 6 Sar. P. C. J. 526 : 8Ind. Dec. (N.S) 393 (P. C).

5. In Ram Kirpals case 11 I. A. 37 : 6 A. 269 : 4, Sar. P.C. J. 489 : 3 Ind. Dec. (N.S) 718, which was followed in Beni Rams case 11 I.A. 181 : 7 A. 102 : 4 Sar. P. C. J. 564 : 4 Ind. Dec. (N.S) 138, it was heldthat the provisions of the Code of 1877 on the subject of res judicata(corresponding to Section 11 of the present Code) did not apply to decisionsarrived at in execution proceedings and that the binding force of suchdecisions depended not on the Code but on general principles of law.

6. In Thakur Prasads case 22 I. A. 44 : 17 A. 106 : 5 M. L.J. 3 : 6 Sar. P. C. J. 526 : 8 Ind. Dec. (N.S) 393 (P. C), the question waswhether an application for execution having been withdrawn without the expresspermission of the Court to make a fresh application, the decree-holder wasdebarred from again applying for the execution of his decree. It was held thatSection 647 of the Code of 1882 (corresponding to Section 141 of the presentCode) could not be so construed as to make Section 373 of the Code(corresponding to Order XXIII, Rule 1, of the present Code) applicable to thecase. In stating the reasons for the decision Lord Hobhouse used the languageof a general kind. He said:

7. It is not suggested that Section 373 of the CivilProcedure Code would of its own force apply to execution proceedings. Thesuggestion is that it is applied by force of Section 647. But the whole ofChapter XIX of the Code, consisting of 121 Sections, is devoted to theprocedure in executions, and it would be surprising if the framers of the Codehad intended to apply another procedure, mostly unsuitable, by saying in generalterms that the procedure for suits should be followed as far as applicable.Their Lordships think that the proceedings spoken of in Section 647 includeoriginal matters in the nature of suite such as proceedings in probates,guardianships, and so forth, and do not include executions. That is the viewtaken by the High Court of Calcutta, after consideration of the Allahabaddecisions, in the case of Bunko Behary Gangopadhya v. Nil Madhub Chuttopadhya18 C. 635 : 9 Ind. Dec. (N.S) 423."

8. Lord Hobhouse added:--- On this construction of Section647 the reasoning of the Allahabad High Court in Sarju Prasads case 10 A. 71 :A. W. N. (1888) 1 : 6 Ind. Dec. (N.S) falls to the ground. And it is clear bothfrom the Code itself, and from the provisions of the Limitation Act of 1877,that the Legislature contemplated that there might be a succession ofapplications for execution. Under the enactments a course of practice has grownup all over India. Whether it is an injurious practice, as intimated by theHigh Court in this case, is not a question for their Lordships. It appears tobe allowed by the law, and it has never been successfully impugned except inAllahabad. The High Court of Bombay, after one contrary decision, and the HighCourts of Calcutta and Madras have repeatedly affirmed the legality of theprocedure which is struck at by the ruling in Sarju Prasads case 10 A. 71 : A.W. N. (1888) 1 : 6 Ind. Dec. (N.S)."

9. The law is still the same. Successive applications forexecution are still permissible and it has been expressly held that a freshapplication may be made even though the previous application was dismissed fordefault: Asim Mandal v. Raj Mohan Das 11 Ind. Cas. 385 [LQ/CalHC/1910/562] : 13 C. L. J. 582. OrderIX, Rule 9 of the Code does not apply in such a case.

10. A further illustration of the view taken in this Courtwill be found in the case of Hari Charan Ghosh v. Manmatha Nath Sen 19 Ind.Cas. 683 : 41 C. 1 : 18 C. W. N. 34. There an application made by a claimantagainst a decree-holder under the provisions of Order XXI, Rule 100, wasallowed ex parte. It was held that Order IX, Rule 13, was inapplicable to thecase and that the decree-holders remedy was to institute a regular suit underOrder XX, Rule 109.

11. From the two cases last cited it would seem to followthat ex parte orders (or decrees) and orders of dismissal for default made inthe course of execution proceedings lie outside the scope of the remediesprovided by Order IX when similar decrees and orders are made in suits."It will be observed, however, that the Code provides special remedies inrespect of applications for execution dismissed for default and in respect oforders made on applications under Order XXI, Rule 109. Subject to the questionof limitation, successive applications for execution may be made and a partyaggrieved by any order made on an application under Order XXI, Rule 100, hasthe right to institute a regular suit.

12. Occasions, however, arise in execution proceedings wherethe Code provides no remedy for an order made against a party in his absence.If on the face of the record it is clear that the order was made without noticeto the party there is no difficulty. On general principles such an order is notbinding on him, and he can come in and demand to have the matter heard in hispresence. But when on the face of the record the order was apparently madeagainst him in a proceeding of which he had notice, the position is not soeasy. Reference may be made to the case of Krishna Chandra Pal v. ProtapChandra Pal 3 C. L. J. 276 and to the case of Diljan Mihha Bibi v. HemantaKumar Roy 29 Ind. Cas. 395 [LQ/CalHC/1915/111] : : 19 C. W. N. 758, where thedecision of the Madras High Court in Subbiah Naicker v. Ramanathan Chettiar 22Ind. Cas. 899 : 37 M. 462 : 26 M. L. J. 189 : (1914) M. W. N. 205 : I. L. W.251 is cited.

13. In Diljan Mihha Bibis case 29 Ind. Cas. 395 [LQ/CalHC/1915/111] : 19 C. W.N. 758 it seems to have been laid down broadly that an application under OrderXXI, Rule 90, to set aside an execution sale was in the nature of an originalproceeding which was not excluded from the purview of Section 141 of the Code.It was, therefore, held that Order IX, Rule 9, applied when such an applicationhad been dismissed for default. It may be expedient, if not necessary, thatsome means should exist of reviewing such an order, but the doubt may beexpressed without disrespect, whether it was necessary for the learned Judgesto go quite so far in their search for a remedy and whether some other solutionof the difficulty which has been felt cannot be found, it will lead toconsiderable confusion if it be held that Section 141 of the Code applies tosome proceedings in execution and not to others. It is not merely a question ofOrder IX. Difficult questions may arise in regard to other parts of the Code.

14. It is true that some decisions in execution proceedingsare decrees by force of the definition Clause in Section 2 of the Code, but thefact does not affect the nature of such proceedings or the distinction aboveindicated between such proceedings and suits." It is clear for instancefrom their language that Rules 9 and 13 of Order IX were intended primarily atany rate to apply to "suits."

15. In the particular case of applications to sat asideexecution sales, Order XLIII, Rule 1 (j), gives an appeal from an order underOrder XXI, Rule 92, setting aside or refusing to set aside a sale. The words ofOrder XLIII, Rule 1 (j), are wide enough to include an order allowing anapplication to set aside a sale ex parte, or dismissing such an application fordefault Kali Kanta v. Shyam Lal Das 38 Ind. Cas. 598 [LQ/CalHC/1916/369] : 25 C. L. J. 163 TheCode, therefore, seems to provide a remedy in such cases by way of appeal.

16. In those cases (such as the present) where no specialremedy is provided by the Code, it will, in my opinion, be simpler and moresatisfactory to maintain the generally received construction of Section 141,that it does not apply to proceedings in execution and to hold that the Courtshave, under the general law, aided perhaps by Section 151, an inherent power toreview ex parte orders and orders of dismissal for default. This view of thematter was suggested in Krishna Chandra Pals case 3 C. L. J. 276 and isconsistent with the decision of the Privy Council in Bam Kirpals case 11 I. A.37 : 6 A. 269 : 4, Sar. P. C. J. 489 : 3 Ind. Dec. (N.S) 718 and with thedecision of the Full Bench of the Allahabad High Court in Dhonkal Singh v.Phakkar Singh 15 A. 84 : A. W. N. (1893) 36 : 7 Ind. Dec. (N.S) 770.

17. At any rate for the purposes of the present case it willnot be necessary to go further. Here, an application for execution was made.The judgment-debtor preferred his objection and it was dismissed for default.Clearly for the purpose of the application for execution in reference to whichthe objection was taken, the order of dismissal for default must be bindinguntil it is set aside. The judgment-debtor was not entitled, as the learnedSubordinate Judge has held, to ignore the order and to file a fresh petition.If that were the law, the order would be a nullity and the Court would bestultified. We need not consider the effect of the order in reference to asubsequent application for execution, supposing the present application were tobe itself dismissed for default. That question does not arise here.

18. The order, then, being binding at the present stage, andin the present proceedings, until it is set aside, it is natural to supposethat there should be some way open to the judgment debtor of getting rid of it,if he could show that his default was not due to his own laches. If theSubordinate Judge was right, as I think he was, in holding that Order IX, Rule9, was inapplicable he had, nevertheless, in my opinion, inherent power on aproper application being made by the respondent to review the order and toenquire whether the respondent had or had not a reasonable cause for notappearing on the date appointed for the hearing of his petition. Upon theresult of that inquiry would depend the question whether the order should orshould not be set aside.

19. In this view the appeal must be allowed and the caseremanded to the lower Court. The respondents petition of 12th August 1911,purporting to be made under Order IX, Rule 9, will be treated as an applicationto the Court in the exercise of its inherent power to review the order ofdismissal for default. If that order is set aside, the Court will then hear anddecide the respondents petition of objection. If the application for reviewfails, the respondents petition of objection will remain dismissed and theappellant will be entitled to proceed with his application for execution.

20. The costs of this appeal will abide the result of theapplication for review in the Court below. The hearing fee is assessed at threegold mohurs.

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Bharat Chandra Nath and Ors. vs. Yasin Sarkar (19.03.1917 -CALHC)