1. An application for setting aside an execution sale underSection 47 and Order XXI, Rule 90, of the Civil Procedure Code was dismissedfor default. The judgment-debtor made an application for setting aside that orderunder Order IX, Rule 9. The learned Munsif rejected the application, holdingthat Order IX had no application to the case. This Rule was granted on theopposite party to show cause why the application should not be entertainedeither under Order IX or Order XLVII, or why such other order should not bemade as to this Court might seem fit and proper. It is admitted by the learnedVakil for the petitioner that Order XLVII is not open to him, as theapplication was made to the successor of the trying Munsif. He relies uponOrder IX or Section 151 of the Civil Procedure Code. I do not think he isentitled to rely on Section 151. To allow him to do so would be to allow him toapply for a review which is expressly prohibited by the Code. He must stand orfall by Order IX. There is some apparent diversity of opinion as to whether theprovisions of Order IX are applicable to matters arising in execution. In thecase of Safdar Ali v. Kishun Lal 7 Ind. cas. 241 [LQ/CalHC/1910/226] : 12 C.L.J. 6 it was held thatan application for re-hearing a matter arising in execution could beentertained under Order IX, Rule 9. This is an express authority on the point.This case vas distinguished in the case of Asim Mandal v. Raj Mohan Das 11 Ind.Cas. 385 : 13 C.L.J. 532 and it was held that all the provisions of Order IXwere not applicable to execution proceedings. That was a case in which anapplication for execution was dismissed for default and it was held that afresh application for execution would nevertheless lie as Order IX, Rule 9, wasnot applicable to an application for execution. The matter came underdiscussion again in the case of Hari Charan Ghosh v. Manmatha Nath Sen 19 Ind.Cas. 683 : 18 C.W.N. 343 : 41 C. 1 and it was held that Order IX. Rule 13, wasnot applicable to a proceeding under Rules 100 and 101 of Order XXI. Both thesecases rely on the history of Section 647 of the old Code in the course of itstransformation into Section 141 of the Civil Procedure Code of 1908. Section647 of Act XIV of 1882 was: "The procedure herein prescribed shall befollowed, as far as it can be made applicable, in all proceedings in any Courtof civil jurisdiction other than suits and appeals." In consequence ofsome divergence of opinion between different High Courts as to whether the proceedingsnamed in this section included execution proceedings, an explanation was addedby Act VI of 1892: "This section does not apply to applications for theexecution of decrees which are proceedings in suits". In 1894 the JudicialCommittee held that even without the explanation the section did not apply toapplications for execution of decrees, Thakur Prasad v. Fakir Ulla 17 A. 106 :22 I.A. 44 : 5 M.L.J. 3 : 6 Sar. P.C.J. 526. That was a case in which anapplication for execution had been struck off at the request of thedecree-holder without any permission to apply again, and the question waswhether Sections 373 and 374 barred a fresh application. This objection wasoverruled by their Lordships. The result of this decision was that theexplanation was held to be superfluous. Section 141 of the present Code runs asfollows: The procedure provided in this Code in regard to suits shall befollowed, as far as it can be made applicable, in all proceedings in any Courtof civil jurisdiction." Supposing that the alteration in language is notmaterial and adopting the construction given by the Privy Council to Section647 of the old Code, it will follow that Section 141 does not apply toapplication for execution.

2. An application for setting aside a sale under Section 47and Order XXI, Rule 90, is not an application for execution. It is amiscellaneous proceeding in the nature of an original proceeding in which theauction-purchaser is the principal interested party. I do not think that aproceeding of this kind is excluded from the purview of Section 141. I think,therefore, that Order IX, Rule 9, is applicable to cases of this kind and thecases of Asim Mandal v. Raj Mohan Dass 11 Ind. Cas. 385 [LQ/CalHC/1910/562] : 13 C.L.J. 532; HariCharan Ghosh v. Manmatha Nath Sen 19 Ind. Cas. 683 [LQ/CalHC/1913/217] : 18 C.W.N. 343 : 41 C. 1have not decided to the contrary. Both these rulings are careful in statingthat all the provisions of Order IX are not applicable. Some of the provisions,therefore, may apply and the judgment of the learned Chief Justice in HariCharn Ghosh v. Manmatha Nath Sen 19 Ind. Cas. 683 [LQ/CalHC/1913/217] : 18 C.W.N. 343 : 41 C. 1contains a clear indication that the interests of justice must have animportant bearing in the matter: It is not as though there was any necessity inthe interests of justice that the provisions of Rule 13, Order IX, should beapplicable to proceedings in execution, because the order is not conclusive butis subject to the right of the person aggrieved to bring a suit." In thepresent case the order is conclusive: there is no regular suit and a review isimpossible. The petitioners , therefore, without any remedy other than OrderIX, Rule 9, to have an adjudication of her case. I may state that She MadrasHigh Court favours the view contended for by the petitioner in this connection.See Subbiah Naicker v. Ramanathan Chettiar 22 Ind. Cas. 899 [LQ/MadHC/1914/25] : 37 M. 462 : 26M.L.J. 189 : (1914) M.W.N. 205 : 1 L.W. 251. I would, therefore, make the Ruleabsolute with costs three gold mohurs and direct that the petition of theapplicant should be dealt with in due course of law.

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Diljanmihha Bibi vs.Hemanta Kumar Roy and Ors. (26.03.1915 -CALHC)