[1] The 1st respondent herein filed an application on 23rd February, 1920 for the execution of the decree in O.S. No. 14 of 190

8. The application after several adjournments came on for hearing on nth October, 1921 when, owing to the absence of the decree-holder s pleader, it was dismissed. The decree-holder s pleader appeared before the Court some time after and the Court restored the application to file without notice to the opposite party. On the same day, the application was made by the decree-holder for an amendment of the execution application. When the amendment application came on for hearing the judgment-debtors contended that the order restoring the petition to file was illegal and that the amendment petition should not be allowed. The Subordinate Judge of Ramnad held that Order 9, Rule 9, Civil Procedure Code, was not applicable to execution proceedings and that the order restoring the petition to file, if treated as an order under Order 47 was illegal as the other party was not given notice of the application. In the result, he dismissed the petition for execution as well as the application for amendment. On appeal the District Judge held relying on Janakl Nath Hore v. Prabhasini Dasee (1915) I.L.R. 43 C 178 that the Court has power under Order 47 to restore an application dismissed for default of appearance, of the applicant and that even if it was not an order under Order 47, it should be treated as one made under Section 15

1. He set aside the order of the Subordinate Judge and remanded the execution application for disposal according to law. Defendants 5 and 7 have preferred this appeal against the order of the District Judge.

[2] The first contention raised by Mr. C.S. Venkatachariar for the appellants is that the Court had no power to restore an application to file which was dismissed for default as Order 9, Civil Procedure Code, did not apply to execution proceedings.

[3] We have recently held in a case reported in Kaliakkal v. Palani Goundan (1925) 50 M L J 200 that Order 9, Civil Procedure Code, did not apply to execution proceedings. Mr. Patanjali Sastri who appears for the 1st respondent does not challenge the correctness of this decision and concedes that Order 9 is not applicable to execu-tion proceedings. The order of the Subordinate Judge was not, therefore, one passed under Order 9, Rule 9.

[4] It is next contended that the order restoring the execution petition to file should not be treated as an order made in review of the order dismissing the application. The Subordinate Judge, when he restored the execution application to file, did not issue notice to the other side. Under Order 47, Rule 4 notice to the other side is imperative. Clause 2(a) is as follows:

No such application shall be granted without previous notice to the opposite party to enable him to appear and be heard in support of the decree or order, a review of which is applied for.

[5] The question is whether an order passed without notice is a nullity or only an irregular order which the Court had jurisdiction to pass. The District Judge has relied upon Janaki. Nath Hore v. Prabhasini Dasee (1915) I.L.R. 43 C 178 as supporting his view that the order of the Subordinate Judge was an order under Order 4

7. In that case it was held "where an appeal was summarily dismissed by a Division Bench of this Court and such order was ultimately set aside on review by the said Bench on an ex parte application without notice to the respondents, that the last order was valid even in the absence of such notice." The learned Judges held that the respondent was not the opposite party within the meaning of Rule 4, Clause (2)(a) interested to appear and support the order of dismissal when the only order sought to be substituted therefor was that the appeal be heard in his presence. With very great respect we are unable to follow the reasoning of the learned Judges. When an appeal is dismissed the decree of the Lower Court is left undisturbed and the respondent is entitled to the benefit of such dismissal, and when the dismissal is sought to be set aside it is he that is interested in supporting the order of dismissal. They conceded that an order of review can be made without previous notice to the person interested in supporting the order sought to be reviewed, but their view was that there was no opposite party when the Court was moved to set aside the order of dismissal for default. This case was followed by another Bench of the Calcutta High Court in The Official Trustee of Bengal v. Benode Behari Ghose Mal (1924) I.L.R. 51 C 94

3. In that case though the learned Judges observe that they prefer to, follow Janaki Nath Hore v. Prabhasini Dasee (1915) I.L.R. 43 C 178 in preference to a previous decision in Abdul Hakim Chowdhury v. Hem Chandra Das (1914) I.L.R. 42 C 433, they rest their decision upon the practice obtaining in the Calcutta High Court for forty years under which an appeal summarily dismissed under Order 41, Rule II, is set aside on review by the same Bench. These two cases cannot be authority for the position that no notice is necessary in the case of a review of an order under Order 47, for the practice of the Calcutta High Court was rightly or wrongly to set aside a summary order of dismissal on an application made for that purpose. In Abdul Hakim Chowdhury v. Hem Chandra Das (1914) I.L.R. 42 C 433 it was held that non-compliance with Rule 4 of Order 47 rendered the granting of an ex parte application for review a nullity. Holmwood, J. observes at page 439:

It is clear that non-compliance with Rule 4 of Order 47 renders the granting of this application for review, which was prejudicial to the respondent, a nullity and that such an application could not be granted without previous notice.

[6] This judgment was concurred in by Chapman, J.

[7] Where the law requires that a certain formality should be complied with before an order could be made, it is not open to the Court to ignore the clear provision of the law and pass an order without complying with it. The notice to the opposite party is imperative under Rule 4, Clause (2)(a). It is urged by the respondent that when the Subordinate Judge restored the petition to-file, the appellants should have preferred an appeal against that order and when a remedy is open to a party against an irregular order made by a Court it should not be considered to be a nullity; for the Court has power to review its own order and if it reviews it irregularly the party affected by the order should appeal against it and Rule 7(b) provides for an appeal if the Court granting the review contravenes the provisions of Rule

4. The question is not whether the party to an illegal order has a remedy or not. If a Court does something which it is not authorised by law to do, that order has no legal force. Such an order is illegal and not merelyan irregular one and a party is not bound by the illegal order.In Surajpal Pandey v. Utim Pandey (1921) 63 I.C. 99 the learned Chief Justice and Coutts, J., declined to follow the case in Janaki Nath Hore v. Prabhasmi Dasee (1915) I.L.R. 43 C 178 and held that "where an appeal has been dismissed for default it cannot be restored under Order 41, Rule 19, which has no application to such a case; nor can it be restored under Order 47, Rule 4, Clause (2) without notice to the opposite party," and "if the appeal is restored without such notice and disposed of without the opposite party becoming aware of the order of dismissal or restoration; that party is entitled, as soon as the matter is drawn to its notice even in Second Appeal, to a hearing".

[8] The order of the Subordinate Judge restoring the appeal to file cannot be considered to be a final order and the opposite party on coming to know of the order could urge any objection which it was open to him to urge if he had notice of the petitioner for restoration. This was clearly laid down by the Privy Council in Krishnaswami Panikondar v. Ramaswami Chettiar (1917) I.L.R. 41 M 412 : 34 M.L.J 63 (PC). In that case Sankaran Nair, J. without notice to the respondent excused the delay in filing the appeal and admitted it. When it came on for hearing after notice an objection was taken before the Division Bench which heard it as being out of time. The Division Bench after an examination of the affidavits filed on both sides dismissed the appeal as provided by Section 4 of the Limitation Act. It was contended before the Privy Council that the order of Sankaran Nair, J. was final and that the Division Bench had no jurisdiction at the hearing of the appeal to reconsider the question whether the delay was excusable. Their Lordships observe at p. 416:

This order of admission was made not only in the absence of Ramaswami Chettiar, the contesting respondent, but without notice to him. And yet in terms it purported to deprive him of a valuable right, for it put in peril the finality of the decision in his favour so that to preclude him from questioning its propriety would amount to a denial of justice. It must, therefore, in common fairness be regarded as a tacit term of an order like the present that though unqualified in expression it should be open to reconsideration at the instance of the party prejudicially affected; and this view 19 sanctioned by the practice of the Courts in India.

[9] The order of the Subordinate Judge therefore restoring the petition could not be considered to be a final order and is open to the objection of the other side. On any ground it was open to it if notice had been issued.

[10] There are at least two stages in a review application. When a review application is filed, the Court gives notice to the opposite party and on hearing the opposite party if it considers there are grounds for re-opening the case it grants the application and if after review it sees reason to alter the order already passed, it modifies it. Against the order granting review there is an appeal under Rule 7 of Order 47 and against the final order passed after review there is also an appeal. Why should a party be deprived of the right of appeal by his not being given notice when the Court grants an application for review The Lahore High Court in Firm Gopal Mal Ganda Mal v. Hara Chand (1923) 75 I C 656 holds the view that an order granting an application for review of an order dismissing a suit for default is not illegal merely because notice of the application was not given to the opposite party. If that party has been given every opportunity to raise any objections that he could raise and was therefore in no way prejudiced by the non-issue of notice to him." Though the party against whom an order is made without notice is entitled to object to it afterwards, it is not competent to a Court to omit to give notice to the opposite party when the law requires that notice shall be given of an application before it is granted.

[11] The order made by the Subordinate Judge restoring the execution application to file cannot be considered on the merits as an order under Order 47, Civil Procedure Code. Though the petition mentioned Order 47, Rule 1, Section 151 and Order 9, Rule 9, yet the affidavit did not set out any grounds which would justify a review of the order. The absence of a pleader is not a ground for review. The grounds for review are set out in Order 47, Rule 1 and the Privy Council has ruled that no Court is justified in reviewing an order made by it for any ground other than those mentioned in Order 47 or grounds which are similar to the grounds specifically mentioned therein. In Chhajju Ram v. Neki (1922) I.L.R. 3 Lah. 127 : 43 M.L.J 332 (PC) a Bench of the Lahore High Court reviewed an order made by another Bench. Viscount Hal-dane in delivering the judgment of their Lordships observed:

They think that Rule 1 of Order 47 must be read as in itself definitive of the limits within which review is to-day permitted, and the reference to practice under former and different statutes is misleading. So construing it they interpret the words any other sufficient reason as meaning a reason sufficient on grounds at least analogous to those specified immediately and previously.

[12] The order of the Subordinate Judge restoring the appeal to file cannot be treated as an order under Order 47, Rule 1.

[13] It is next contended for the -respondent that the Court has power under Section 151 to correct its own errors or to pass an order which it thinks proper in the interests of justice. In Bholu V. Ram Lal (1921) I.L.R. 3 L 66 it was held that "in the exercise of its inherent power expressly recognised by Section 151 of the Code, a Court can restore an application for execution after it has dismissed it for default and should do so notwithstanding that the applicant has an alternative remedy by making a second application for execution if he satisfies the Court that it should exercise its inherent jurisdiction ex debilo justitiae." In that case reliance was placed upon Debt Baksh Singh v. Habib Shah (1913) I.L.R. 35 A 331 : 25 M L J 148 (P C) as supporting the view taken by it. In Debi Baksh Singh v. Habib Shah (1913) I.L.R. 35 A 331 : 25 M L J 148 (P C) the plaintiff was dead and the Court not: being aware of his death dismissed the suit for the non-appearance of the plaintiff. The Privy Council held that the dismissal was an abuse of the process of the Court. Their Lordships observe at p. 337:

Quite apart from Section 151, any Court might have rightly considered itself to possess an inherent power to rectify the mistake which had been inadvertently made.

[14] Where the Court passes an order inadvertently or without being aware of certain facts which should have been brought to its notice it has power to correct an error committed by it, not owing to the negligence of a party, but owing to its not being aware of certain facts. What applied to a person who makes default in appearing before the Court cannot apply to a deceased person for he cannot appear before the Court and a Court has no power to dismiss a suit for default when the plaintiff is dead, and if it does without being aware of the fact, it can correct the wrong order made by it.

[15] In this case it cannot be said that the application was dismissed for default of appearance. The decree-holder was asked to furnish certain information to the Court to enable it to proceed with the execution. He having failed to furnish the information or produce the necessary papers for proceeding with the execution, has brought himself within Order 21, Rule 57 and the dismissal of the application cannot therefore be considered to be a dismissal for default of appearance. It is strongly urged by Mr. Patanjali Sastri that the respondent would lose the benefit of his decree for any subsequent application would be barred by the twelve years rule and therefore the Court should use its inherent power to restore the application to remedy the wrong. The decree-holder can always file a fresh application for execution if the previous one is dismissed and the fact that a fresh application would be barred by limitation would not give jurisdiction to the Court which it does not otherwise possess. With very great respect we are unable to agree with the learned Judge who decided Bholu v. Ram Lal (1921) I.L.R. 3 L 66 that the inherent power of the Court should be invoked in cases in which the second application may be barred by limitation. in Babui Ritu Kuer v. Alakhdeo Narain Singh (1918) 4 Pat L J 330 it was held that the Court should not use its inherent power for the purpose of restoring execution eases. Suhrawardy, J. in Suradingu Muckerjee v. Gives Chandra Tewari (1924) 78 I C 816 takes the view that "if an execution case is erroneously dismissed for default and the decree-holder applies for the restoration of the case by way of review, the application for restoration was one under Section 151 of the Civil Procedure Code, and the mere fact that it was also described as an application for review did not give the judgment-debtor a right of appeal against the order of restoration." The Bombay High Court in Sonubai v. Shiva ji Rao (1920) I.L.R. 45 B 648 held that "where an application is made to re-admit an appeal dismissed for default, it was open to the Court to exercise its inherent powers to deal with the application under Section 151 of the Civil Procedure Code and make an order to the effect for the ends of justice or to prevent abuse of the Court, without any reference to the period of limitation fixed for application to re-admit appeals or to restore any other proceeding dismissed for default. " When an application is granted under Section 151 of the Civil Procedure Cocie, the party affected by the order has no right of appeal as observed by Suhrawardy,J. in Suradingu Muckerjee v. Giresh Chandra Tewari (1924) 78 I C 816, should the Court use such powers in such a way as to give an unfair advantage to one party over the other because it thinks that the ends of justice do require it. Justice should be administered according to law and procedure. It may be that in administering the law the Court may feel that one party gains an unfair advantage over the other. But it is not open to a Court to ignore the procedure laid down for its guidance and grant reliefs when it thinks such a relief should be granted without following the procedure laid down for its conduct. If the provisions of Section 151 is given the extended interpretation which some Courts are prepared to give them, the Courts may overlook the rest of the Procedure Code whenever it considers that the ends of justice do require that a certain order should be passed. Section 151 enables a Court to make such orders as may be necessary for the ends of justice and to prevent the abuse of the process of the Court. The Law of Limitation works hardship upon persons who have legitimate claims against their opponents, but the legislature has enacted the Law of Limitation; and it would not be right for the Court to overlook the Law of Limitation on the ground that the claim is a bona fide one and the defence on the ground of limitation is immoral. When the law lays down certain procedure for parties who are affected by any order, the mere fact that the Law of Limitation steps in and prevents the party from claiming relief under the procedure is not sufficient justification for the Court to grant a relief under Section 15

1. In this connection reference may be made to Neelaveni v. Narayana Reddi (1919) I.L.R. 43 M 94 : 37 M L J 599 (F B). There Oldfield, J. observed at page 101 "that our Courts possess inherent power is recognised in Section 151 of the Civil Procedure Code. But the exercise of the power in a particular form in which it is invoked must be justified in each case in the manner authorised by authority... and generally the legitimacy of its exercise must be tested with reference to the principles which authority has prescribed." In that case it was held "that a Court has no power, apart from the provision of Order 9, Rule 13 of the Civil Procedure Code, to set aside an ex parte decree passed by itself. " Though a Court may feel that an ex parte decree was improperly passed, it cannot set it aside by invoking its power under Section 15

1. The application to set aside an ex parte decree can only be granted if the conditions laid down in Order 9, Rule 13 are satisfied. In Somayya v. Subbamma (1903) I.L.R. 26 M 599 it was held that if the Court sees sufficient reason to grant the application it could do so, but that decision was overruled by the decision in Neelaveni v. Narayana Reddi (1919) I.L.R. 43 M 94 : 37 M L J 599 (F B). We hold that the order restoring the execution application to file cannot be said to be an order passed under Section 15

1. The 1st respondent could have presented a fresh application for execution, but owing to the Law of Limitation he is precluded from doing so and that would not give jurisdiction to a Court to invoke the aid of Section 15

1. Mr. Patanjali Sastri very strongly urged that his client would lose about Rs. 5,000. However dishonest the conduct of the appellants might have been, they are entitled to the relief which the law gives them. We therefore with much regret allow the appeal but in the circumstances disallow the costs of the appeal.