Authored By : B.K. Mullick, Thornhill

B.K. Mullick, J.

1. This appeal arises out of the execution of a decree for costs passed so far back as 1904. The amount of costs allowed by the decree was a sum of Rs. l,058, and the claim with interest and other expenses now amounts to Rs. 1,950 12.0. The course of the litigation is instructive.

2. The original judgment debtors were Alakbdeo Narain and his sister Anant, who is now dead, and the execution is proceeding against Alakhdeo alone. The decree-holder wan a man named Bhagwat Prasad. He, on the 17th July 1908, filed an execution petition which was dismissed on the 22nd February 1909, because he had died subsequently to the filing of the execution petition and no substitution of his heirs had been made in the execution proceedings. Bhagwat Prasad left a widow and two daughters, one of whom, Musammat Ritu Kuer, claimed the decree, in question on the ground that Bhagwat during his lifetime had made a gift of it to her and on the 24th February 1911 she took out betters of Administration in respect of her father's estate.

3. On the 13th June 1911, Ritu Kuer as administratrix filed the execution petition. That petition was dismissed on the 25th October 1911. The third execution petition was filed by her on the 6th January 1913, and the judgment-debtor Alakhdeo preferred an objection under section 47, Civil Procedure Code, contending that the decree could not be executed by Ritu Kuer in the absence of the widow and the other daughter of Bhagwat.

4. On the 28th June 1913, after several adjournments, the execution case came up before the Subordinate Judge, who made the following order:--

It is clear from the testimony of the judgment-debtor's witness, Mahadeo Singha, that the mother of the applicant for execution is alive. Their plea is that as the decree stands in the name of her deceased father Bhagwat Pande she has no right to execution. The execution petition is dismissed with costs. Pleader's fee Rs. 8 ex parte. Decree-holder's Pleader is absent.

5. The creditor Ritu Kuer does not appear to have taken any steps to set aside this order; she simply ignored it and filed another execution petition on the 3rd March 1914, before the Subordinate Judge. That execution petition was dismissed because she failed to prove service of notice upon the judgment debtor. The next and last execution case was filed on the 16th November 1916, and in it the Subordinate Judge has given effect to the judgment-debtor's contention that so long as the order of the 28th June 1913 stands, it is a bar to all future execution proceedings in respect of this debt.

6. The present appeal is preferred by the creditor against the order of the Subordinate Judge dismissing the execution petition.

7. Now the first ground urged by the learned Vakil for the appellant is, that Order IX, Civil Procedure Code, applies to execution proceedings and that under rule 8 of that Order, even though the judgment debtor appeared the Court should have simply recorded an order of dismissal for default and was not in any way competent to go into the merits of the objections raised by the judgment-debtor. It is urged that in going into the merits of the objections the Court acted without jurisdiction, and, therefore, the order made on the 28th June 1913 is a nullity.

8. Now I am quite satisfied that Order IX of the Civil Procedure Code does not apply to execution proceedings. Section 141, Civil Procedure Code, has been distinctly interpreted as meaning that it is not necessary for Courts to apply the provisions of Order IX to proceedings in execution and we have the clear authority of Sir Lawrence Jenkins in Hari Charan Ghosh v. Manmatha Nath Sen 19 Ind. Cas. 683 ; 41 C. 1; 18 C.W.N. 343 supporting this view.

9. There has been, it is true, some attempt on the part of other Courts to distinguish this case and to apply Order IX, Civil Procedure Code, to cases which seemed to those Courts to be proceedings of an original nature, but in my opinion it is impossible in view of the ruling of their Lordships of the Privy Council in Thakur Prasad v. Fakir Ullah 17 A. 106; 5 M.L. J. 3; 22 I.A. 44; 6 Sar. P. C.I. 526 : 8 Ind. Dec. (N.S.) 393 (P.C.) as interpreted by Sir Lawrence Jenkins in the case cited above, to make any distinction between proceedings in execution which are of an original nature and those which are not. This is also the view taken by their Lordships of the Calcutta High Court in Bharat Chandra Nath v. Yasin Sarkar 41 Ind. Cas. 586 ; 21 C.W.N. 769.

10. The learned Vakil for the appellant has drawn our attention to the case of Satya Narayan Lal v. Gobind Sahay 43 Ind. Cas. 951 ; 3 P.L.I. 250; 4 P.L.W. 102 but that case does not touch the present case. In that case a claim was made by a person who was not a party to the proceedings, and it was held by their Lordships of this Court that the proceeding was of an original nature and that Order IX, Civil Procedure Code, would apply for restoring the case after it had been dismissed for default. It is not necessary for the purposes of the case now before us to consider how far that decision is consistent with the view previously taken by their Lordships of the Privy Council in Thakar Prasad v. Fakir Ullah 17 A. 106; 5 M.L. J. 3; 22 I.A. 44; 6 Sar. P. C.I. 526 : 8 Ind. Dec. (N.S.) 393 (P.C.). It is sufficient to say that the proceeding before the execution Court was not a proceeding similar to that in Satya Narayan Lal's case 43 Ind. Cas. 951 ; 3 P.L.I. 250; 4 P.L.W. 102.

11. In my opinion a decree-holder, whose case is dismissed for default, has his remedy by way of fresh applications within the period of limitation or by resort to the provisions of Order XLVII for review. There is no reason why additional facilities should be given to him by applying the provisions of Order IX.

12. Then it has been contended that although Order IX, Civil Procedure Code, may not apply the inherent powers of the Court should be invoked for the purpose of restoring the case, and reliance has been placed upon Bharat Chandra Nath's case 41 Ind. Cas. 586 ; 21 C.W.N. 769 in support of the view that it is open to this Court to direct the Subordinate Judge to consider whether or not he should use his powers under section 151, Civil Procedure Code. Speaking for myself I should be entirely averse to any Court's using its inherent powers for the purposes of restoring execution oases. Execution creditors as well as the judgment-debtors have ample facilities under the existing law for restoring cases dismissed for default, and there is no reason why the extra-ordinary and vague jurisdiction given by section 151 should be resorted to for supplementing those facilities. I hold, therefore, that Order IX, Civil Procedure Code, was not applicable. It was, therefore, not illegal for the Subordinate Judge to go into the merits of the judgment debtor's objection. Moreover, if the Court has acted illegally by contravening Order IX, that would have been at best an error of law made by a Court with jurisdiction. The Court had the right to apply the law as it understood it and if in doing so it made a mistake, it cannot be said that the Court acted without jurisdiction.

13. In order to support his argument as to the want of jurisdiction on the part of the Subordinate Judge, the learned Vakil has also brought to our notice rule 57 of Order XXI, which says that if after attachment the decree-holder fails to appear the attachment is void. That is an additional penalty but it has no bearing on the question of jurisdiction. In my opinion there is nothing in the Civil Procedure Code which ousts the jurisdiction of the executing Court to go into the merits of the judgment-debtor's objections even though the executing creditor is absent. I cannot, therefore, accept the contention that even though the judgment-debtor is anxious to have the case decided on the merits, the Court cannot proceed in the absence of the executing creditor. It cannot be the intention of the law that judgment-debtors should be placed in this unsatisfactory and insecure position.

14. Finally it. is contended that there is no principle of law under which the order of the 28th June would be a bar to future executions.

15. Now, the learned Subordinate Judge has based his order on the principle of Mungul Pershad Dichit v. Grija Kant Lahiri  8 C. 51 : 11 C.L.R. 113 : 8 I.A. 123 4 Sar. P.C. J. 249 : 4 Ind. Dec 32 (P.C.). In that case the judgment-debt or was absent and in his absence the Court decided that a decree which was manifestly barred by-law was not so barred, and proceeded to execute the decree under that erroneous view of the law. Their Lordships held that it was not open to the judgment-debtor in a subsequent execution to challenge the decree-holder's right to execute the decree by showing that the previous proceedings were incompetent.

16. Here, rightly or wrongly, a Court with jurisdiction has disposed of the judgment-debtor's contention on the merits, and has decided that the decree-holder was not competent, by reason of a defect of, parties, to proceed with the execution. The principle of Mungul Pershad Dichit's case 8 C. 51 : 11 C.L.R. 113 : 8 I.A. 123 4 Sar. P.C. J. 249 : 4 Ind. Dec 32 (P.C.) clearly applies and it is not open to the decree holder to come in and say that the previous order was wrong. The learned Vakil contends that in Mun gul Pershad Dichit's case  8 C. 51 : 11 C.L.R. 113 : 8 I.A. 123 4 Sar. P.C. J. 249 : 4 Ind. Dec 32 (P.C.) the judgment-debtor, though he did not appear before the order was passed, did do so subsequently and accepted the order of attachment. That may be so, but the principle upon which their Lordships decided Mungul Pershad Dichit's case  8 C. 51 : 11 C.L.R. 113 : 8 I.A. 123 4 Sar. P.C. J. 249 : 4 Ind. Dec 32 (P.C.) was not founded upon any subsequent ratification by the parties.

17. The learned Vakil next relies on the case of Bholanath Dass v. Profulla Nath Kundu Chowdhry 28 C. 122; 5 C.W.N. 80. In that case Mungul Pershad Dichit's case  8 C. 51 : 11 C.L.R. 113 : 8 I.A. 123 4 Sar. P.C. J. 249 : 4 Ind. Dec 32 (P.C.) was distinguished by their Lordships of the Calcutta High Court on the ground that there was in fact no adjudication upon the merits, and the execution case was dismissed merely by reason of the absence of the decree-holder. Their Lordships held that as there had been no adjudication upon the merits, the principle of res judicata did not apply. Therefore, that case is no authority for the contention that the principle of Mungul Pershad Dichit's case  8 C. 51 : 11 C.L.R. 113 : 8 I.A. 123 4 Sar. P.C. J. 249 : 4 Ind. Dec 32 (P.C.) does not apply in every case where a judgment-creditor is absent. It was open to the decree-holder to appear on the day fixed for the hearing of the judgment-debtor's objections. The Court might certainly have dismissed the case without going into the merits, but it chose to go into the merits and its decision is, therefore binding till it is set aside. The appeal is dismissed with costs.

Thornhill, J.

18. I agree.