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Sri Tankala Appalaswamy Gari Samba Murthy v. Gopasundara Sabatho .
Factual and Procedural Background
The petitioner is the decree-holder and was the plaintiff in O.S. No. 41 of 1946. He filed Execution Petition (E.P.) No. 303 of 1958 for execution of the decree in O.S. No. 41 of 1946. On 7-11-1958 the E.P. was dismissed for default on the ground that "batta" (a court fee/charge) was not paid. On that date more than twelve years had elapsed since the decree was passed. The decree-holder then filed Execution Application (E.A.) No. 578 of 1958 seeking restoration of the E.P., alleging that the batta was not paid because of an oversight on the part of the clerk of the pleader appearing for him and that he would suffer irreparable loss if the E.P. were not restored.
The learned District Munsif framed a single point for determination: "Whether the execution petition can be restored, which was dismissed for default?" He concluded there were no grounds for restoration and dismissed the E.A. The plaintiff (decree-holder) filed the present revision petition against that order.
Legal Issues Presented
- Whether an execution petition dismissed for default can be restored (i.e., whether the E.P. dismissed for non-payment of batta may be restored).
- Whether the executing Court may restore an execution petition dismissed for default by invoking its inherent powers under Section 151 of the Civil Procedure Code, or whether restoration must be sought under the specific statutory provisions (Order 21, Rules 104 and 105 of the CPC).
Arguments of the Parties
Petitioner's (Decree-holder's) Arguments
- The E.P. could not be prosecuted (batta was not paid) due to an oversight on the part of the clerk of the pleader appearing for the plaintiff.
- If the E.P. is not restored, the decree-holder would be put to irreparable loss.
- The petitioner therefore prayed for restoration of the E.P.
The opinion does not contain a detailed account of the respondent's legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Alagasundaram Pillai v. Pichuvier, ILR 52 Mad 899 : 57 Mad LJ 381 : AIR 1929 Mad 757 | Full Bench addressed whether Order 9 applies to proceedings under Rule 97/100 (Order 21) and whether the Court has inherent power to set aside dismissal for default in such proceedings; held Order 9 does not apply to such execution proceedings (except where s.47 applies) and that the Court had no inherent power to set aside such dismissals. | The learned District Munsif relied on this Full Bench decision to support the conclusion that an E.P. dismissed for default could not be restored under Section 151 of the CPC where the dismissal was due to a mistake other than by the Court itself. The revising Court observed that this Full Bench decision related to the law as it existed before insertion of Rules 104 and 105 and that those parts of earlier decisions relating to matters now governed by Rules 104 and 105 ceased to be in force insofar as they related to what is provided by those rules. |
| Keshardeo v. Radhakissen, AIR 1953 SC 23 (1953-1 Mad LJ 100) | Authority cited for the proposition that an E.P. dismissed for default could not be restored under the Court's inherent power (Section 151) when the dismissal was due to a mistake other than one committed by the Court itself. | The District Munsif relied on this Supreme Court decision in dismissing the restoration application; the revising Court noted the lower Court's reliance but concluded that statutory Rules 104 and 105 of Order 21 provide the proper mechanism for restoration. |
| Budla Eswaraiah v. Kasala Sambamma, 1958-1 Andh WR 320 : AIR 1958 Andh Pra 341 | Observation that the executing Court has inherent power under Section 151 to dismiss and to restore applications in execution proceedings, though as a general rule the Court should not ordinarily resort to Section 151 for restoration. | The District Munsif cited this decision; the revising Court recorded the decision but held that where a specific statutory provision (Order 21, Rule 105(1)) exists for restoration, reliance on inherent powers under Section 151 is unnecessary and inappropriate. |
| Gopalacharyulu v. Veeranna, 1955 Andh WR 47 : AIR 1955 Andh Pra 142 | Principle that inherent power under Section 151 cannot be invoked where the procedure to be adopted in a particular case or class of cases is expressly provided for by the Code; in such matters the Court should act only under the express provisions. | Applied by the revising Court to conclude that Order 21 Rule 105(1) is the specific statutory provision under which an Execution Petition may be restored, and therefore the invoking of Section 151 for restoration was not appropriate. |
| Narayana Chettiar v. Muthu Chettiar, 51 Mad LJ 219 : AIR 1926 Mad 980 | Held that Order 9 of the CPC did not apply to execution proceedings and that the Court had no power to restore to file an application dismissed for default under Order 9. | One of several Madras High Court precedents cited to demonstrate the earlier position (pre-insertion of Rules 104 and 105) that Order 9 did not apply to execution proceedings; the revising Court explained the historical context and subsequent statutory changes. |
| Kaliakkal v. Palani Koundan, 50 Mad LJ 200 : AIR 1926 Mad 412 | Decision holding that Order 9 did not apply to execution proceedings except where section 47 is involved. | Referenced with other Madras decisions to show the pre-existing rule before Rules 104 and 105 were inserted into Order 21. |
| Subbiah Naicker v. Ramanathan Chettiar, 26 Mad LJ 189 : AIR 1914 Mad 162 | Authority to the effect that Order 9 did not apply to proceedings in execution except in cases involving section 47. | Used as part of the body of pre-1945 decisions showing that Order 9 did not govern execution proceedings generally; the revising Court distinguished the present statutory position after insertion of Rules 104 and 105. |
| Ramaraghavareddi v. Rajah of Venkatagiri, 52 Mad LJ 123 : AIR 1927 Mad 355 | Held that the mere absence of an express provision for restoring an execution petition dismissed for default would not alone warrant invoking Section 151 of the CPC. | Cited to show earlier judicial reluctance to invoke inherent powers merely because the Code lacked an express provision; the revising Court contrasted that earlier position with the present statutory provisions (Rules 104 and 105). |
| Siva Subramania Chettiar v. Adaikkalam Chettiar, 1944-1 Mad LJ 259 : AIR 1944 Mad 293 | Case where an execution petition was dismissed for default; appellate courts held there was no scope for exercise of inherent power under Section 151 to set aside such dismissal and suggested amendment needed to prevent hardship in some cases. | The revising Court relied on the narrative that this decision highlighted a hardship and led to legislative amendment: by P. Dis. No. 397 of 1945 Order 9 Rule 15 was omitted and Rules 104 and 105 were inserted in Order 21. The insertion rectified the defect identified in this case. |
| Arunachalam v. Veerappa Chettiar, 61 Mad LJ 348 : AIR 1931 Mad 656 (Full Bench) | Held that Order 9 did not apply to execution proceedings (background to subsequent rule changes). | Cited as part of the judicial history noting that Rule 15 of Order 9 was subsequently inserted and later omitted, and that Rules 104 and 105 were added to Order 21, thereby altering the statutory landscape for restoration of execution petitions. |
Court's Reasoning and Analysis
The revising Court began by identifying the statutory provisions relevant to dismissal and restoration of execution petitions: Order 21, Rules 104 and 105(1) of the Civil Procedure Code. Rule 104(2) permits the Court to dismiss an application where the applicant does not appear on the day fixed for hearing; Rule 105(1) provides a specific statutory route by which an applicant against such an order may apply to set it aside on showing sufficient cause for non-appearance.
The District Munsif had relied on earlier case law (including a Madras Full Bench decision and a Supreme Court decision) that, as then stated, limited the Court's inherent power under Section 151 to set aside dismissals in execution proceedings. The District Munsif concluded there was no mistake by the Court and held that the mistake was on the part of the plaintiff in not paying batta.
The revising Court analysed the historical decisions cited by the lower Court and placed them in temporal and statutory context. It observed that many of the Madras High Court decisions, including the Full Bench decision in ILR 52 Mad 899 (AIR 1929 Mad 757), dealt with the law as it stood before the insertion of Rules 104 and 105 in Order 21 (by P. Dis. No. 397 of 1945). Those earlier decisions held that Order 9 did not apply to execution proceedings and that inherent powers under Section 151 could not be invoked to set aside dismissals in execution proceedings in the absence of other remedies.
The Court emphasised that the insertion of Rules 104 and 105 into Order 21 addressed the specific lacuna which earlier decisions had identified. As a result, the restoration of an execution petition dismissed for default now falls clearly within the statutory scope of Order 21 Rule 105(1) read with Rule 104. Therefore, where a specific statutory provision exists (Rule 105(1)), there is no need to invoke Section 151 for restoration; the Court must consider restoration under the statutory procedure and on its merits.
The revising Court found that the learned District Munsif had confined his inquiry to whether he had inherent power under Section 151 to restore the E.P. and had not considered the statutory power under Order 21 Rules 104 and 105, nor had he gone into the merits of whether the E.P. ought to be restored under Rule 105(1). For these reasons the revising Court concluded the lower Court's order should be set aside and remitted the matter for determination on the merits under the correct statutory provision.
Holding and Implications
Holding: The revision petition is allowed and the order of the lower Court (the District Munsif) is set aside. The revising Court directed the District Munsif to consider whether, on merits, the Execution Petition should be restored under Order 21 Rule 105(1) of the CPC and to decide the matter in accordance with law. The Court made no order as to costs.
Implications:
- The direct effect is that the District Munsif's dismissal of the restoration application is set aside and the question of restoration must now be considered on the merits under Order 21 Rule 105(1) read with Rule 104.
- The revising Court expressly noted that earlier Madras High Court decisions (including the Full Bench decision in ILR 52 Mad 899 : AIR 1929 Mad 757) that addressed the law before insertion of Rules 104 and 105 cease to be in force insofar as they relate to matters now governed by these rules. In other words, the statutory insertion of Rules 104 and 105 changed the legal framework for restoration of execution petitions dismissed for default and must be followed.
- The Court did not purport to establish any broader new precedent beyond its interpretation that restoration of execution petitions dismissed for default falls within the scope of Order 21 Rules 104 and 105(1); the order remits the matter for decision on merits under those statutory provisions.
1. This is a petition to revise the order of the District Munsif, Sompeta in E.A No. 578 of 1958 in E.P No. 303 of 1958 in O.S No. 41 of 1946 on his file.
2. The relevant facts are briefly these:— The petitioner is the decree-holder. He was the plaintiff in O.S No. 41 of 1946. He filed E.P No. 303 of 1958 in execution of the decree in O.S No. 41 of 1946. On 7-11-1958, the E.P was dismissed on the ground that batta was not paid. On that day, more than twelve years had elapsed from the date of the passing of the decree in O.S No. 41 of 1946. The decree-holder filed E.A No. 578 of 1958 praying for restoration of the E.P alleging that the batta could not be paid due to over-sight on the part of the clerk of the pleader appearing for him (plaintiff) and that he would be put to irreparable loss if the E.P was not restored. The learned District Munsiff framed one point for determination as follows:
“Whether the execution petition can be restored, which was dismissed for default?”
He found that there are no grounds to restore the E.P and dismissed the E.A Thereupon, the plaintiff-decree-holder has filed this revision.
3. Rules 104 and 105(1) of Order 21 of the CPC run as follows:—
“104. (1) The Court before which an application under any of the foregoing rules of this order is pending may fix a day for the hearing of the application.
(2) Where on the day fixed or on any day to which the hearing may be adjourned, the applicant does not appear when the case is called on for hearing, the Court may make an order that the application be dismissed.
(3) Where the applicant appears and the respondent to whom the notice has been issued by the Court does not appear, the Court may hear the application ex parte and pass such order as it thinks fit.
4. Explanation:— An application referred to in sub-rule (1) includes a claim or objection made under Rule 58 of this order.”
“105(1): The applicant against whom an order is made under sub-rule (2) of the preceding rule or a respondent against whom an order is passed ex parte under sub-rule (3) of the preceding rule or under sub-rule (1) of Rule 23 of this order, may apply to the Court to set aside the order and if he satisfies the Court that there was sufficient cause for his non-appearance when the application was called on for hearing, the Court shall set aside the order on such terms as to costs or otherwise as it thinks fit, and shall appoint a day for the further hearing of the application.”
It is clear that the dismissal of the execution petition comes under Order 21, Rule 104(2) of the CPC and that the restoration of the E.P can be done under Order 21 Rule 105(1) of the CPC.
5. The learned District Munsif has relied on the Full Bench decision of the Madias High Court in Alagasundaram Pillai v. Pichuvier, ILR 52 Mad 899 : 57 Mad LJ 381 : (AIR 1929 Mad 757) and the decision of the Supreme Court in Keshardeo v. Radhakissen, 1953-1 Mad LJ 100 : (AIR 1953 SC 23) for holding that the E.P which was dismissed, could not be restored under section 151 of the CPC when the dismissal was due to a mistake other than one committed by the Court itself. The learned District Munsif dismissed the petition on the ground that there was no mistake committed by the Executing Court, but that there was a mistake committed by the plaintiff in not paying the batta, as ordered by the Court. After framing the question, the learned District Munsif proceeded to state as follows:—
“It is well settled that the provisions of Order IX of the CPC do not apply to execution proceedings. The only question is whether this Court in exercise of its inherent powers under section 151 of the CPC can restore an application dismissed for default in execution proceedings?”
On this basis, he has only considered the question formulated by him and referred to a decision of this Court in Budla Eswaraiah v. Kasala Sambamma, 1958-1 Andh WR 320 : (AIR 1958 Andh Pra 341) wherein Kumarayya, J., observed thus:—
“It is however clear that the executing Court has inherent power not only to dismiss the applications in the execution proceedings but also to restore them to file under Section 151 of the CPC, though save in certain cases, it ought not to resort to section 151, in so far as restoration is concerned.”
The lower Court stated that the above ruling did not lay down a general proposition that applications dismissed for default in execution proceedings could be restored under section 151 of the CPC as a general rule (of course, if the Court were satisfied that there were grounds for restoration). In Gopalacharyulu v. Veeranna, 1955 Andh WR 47 : ((S) AIR 1955 Andh Pra 142) this Court observed that the inherent power vested in Courts under section 151 of the CPC could not be invoked where the procedure to be adopted in a particular case or class of cases was expressly provided for by the Code and that in such matters the Court could not act except under the conditions specified by the express provisions. In this particular case, there is a specific statutory provision under Order 21 Rule 105(1) of the CPC under which the Execution Petition could be restored on sufficient cause being shown for non-appearance. Consequently, the question of restoration by the exercise of inherent powers by the Court under section 151 of the CPC does not arise at all.
6. In Narayana Chettiar v. Muthu Chettiar, 51 Mad LJ 219 : (AIR 1926 Mad 980) the Madras High Court held that Order 9 of the CPC did not apply to execution proceedings and that the Court had no power to restore to file an application, which was dismissed for default, under that provision. To a similar effect are the decisions in Kaliakkal v. Palani Koundan, 50 Mad LJ 200 : (AIR 1926 Mad 412) and Subbiah Naicker…(Second Counter-Petitioner) v. Ramanathan Chettiar…(Petitioner) .*, 26 Mad LJ 189 : (AIR 1914 Mad 162) wherein it was held that Order 9 did not apply to proceedings in execution except such as involve the determination of any question under section 47 of the CPC, in which case the orders thereon would amount to decrees. In Ramaraghavareddi v. Rajah of Venkatagiri, 52 Mad LJ 123 : (AIR 1927 Mad 355) it was held that the mere fact that the Code contained no express provision for restoring an execution petition dismissed for default would not by itself warrant the invocation of section 151 of the CPC. Jackson, J., suggested that if the Court would simply strike of such cases, to be restored if necessary on the appearance of the party, there would be no trouble at all.
7. In ILR 52 Mad 899 : 57 Mad LJ 381 : (AIR 1929 Mad 757) a Full Bench of the Madras High Court had to deal with the following questions, which were referred to it, on the facts of that case:
“(1) Whether the provisions of Order 9 of the CPC apply to proceedings instituted under Rule 100 of Order 21 of the Code, and
(2) Whether otherwise, the Court has inherent power to set aside the dismissal for default of an application made under Rule 100 where the ends of justice render it necessary to do so.”.
8. The learned Judges answered the first question as follows:—(at page 391)
“Therefore, on the first question, the answer as that Order 9 does not apply to such proceedings under Rule 97 or 100 as do not also fall within section 47.”.
9. On the second question, they answered it in the negative and held that the Court had no inherent power to set aside, on sufficient cause being shown, either an order dismissing for default an application under Order 21 Rule 97 or 100, or an order allowing such an application ex parte. The learned Judges observed:—
“The resort to inherent powers may be justified in a case of gross injustice where the party has no other remedy. But, here the party has his remedy by way of suit.”
This decision has been followed in subsequent decisions of the Madras High Court.
10. In Siva Subramania Chettiar v. Adaikkalam Chettiar, 1944-1 Mad LJ 259 : (AIR 1944 Mad 293) the relevant facts were as follows:—On 4-4-1941, the next friend of the minor decree-holder was absent from Court and the execution petition was dismissed for default. On 18-4-1941, the next friend of the minor, being the natural father of the minor, whose adoptive father was dead, applied for a review of the order of dismissal. The District Judge granted the application, not as one falling within Order 47, Rule 1 of the CPC but because he felt that the dismissal of the execution application would work great hardship, as it was too late to file a fresh one, and consequently it was a case in which the Court should invoke the inherent powers recognised by section the Two, out of the three, judgment-debtors, filed appeals which were-heard and allowed by Horwill, J. Then, the appellants filed Letters Patent Appeals under Clause 15 and they came up for hearing before Leach, C.J, and Kunhi Raman, J. The learned Judges held that neither the minor's pleader nor his next friend was present when the execution petition was called on 4-4-1941 and that the E.P was rightly dismissed, as several decisions of the Madras High Court showed that an application for review did not lie and that there was no scope for the exercise of the inherent power of the Court under section 151 of the CPC. The learned Judges pointed out the desirability of amending Order 9 Rule 15 of the CPC and observed thus:— (at page 261)
“The case appears to be one of great hardship and suggests that a case has been made out for an amendment to Rule 15 of Order 9 of the CPC so that a Court may in suitable circumstances set aside an order of dismissal of an execution petition passed for default of appearance. After this Court had held in Arunachalam v. Veerappa Chettiar, 61 Mad LJ 348 : (AIR 1931 Mad 656 (FB)) that Order 9 did not apply to execution proceedings, Rule 15 was inserted in order to make the order applicable in execution proceedings so far as the judgment-debtors are concerned in cases analogous to those dealt with in Rules 6, 13 and 14. Rule 9 applies to the dismissal of a suit for the default on the part of the plaintiff and at the moment we can see no room why this rule should not be made to apply to the dismissal of an application for execution for default. Of course, where by default an execution petition is dismissed and the period of limitation has not expired, the decree-holder can file a fresh application; but where the application has been dismissed for default and the decree-holder cannot then file a fresh application by reason of the law of limitation, there should be some provision of law which allows him to get the order of dismissal set aside if he can show that he was prevented by sufficient cause from appearing.”
It is obvious that the learned Judges made the above observations as they were dissatisfied with the provision of Rule 15 of Order 9, as it then existed, and suggested a remedy to cure the Existing defect. The above judgment was rendered on 10-12-1943. Subsequently, by an order P. Dis. No. 397 of 1945 dated 4-9-1945, Order 9 Rule 15 was omitted altogether and by the same Order, Rules 104 and 105 were newly inserted in Order 21 of the CPC. This change has brought about the rectification of the defect which caused hardship and which was pointed out by the learned Judges in 1944-1 Mad LJ 259 : (AIR 1944 Mad 293).
11. Consequently, all the decisions of the Madras High Court, including the decision of the Full Bench in ILR 52 Mad 899 : 57 Mad LJ 381 : (AIR 1929 Mad 757) which related to the law, as it then existed, before Rules 104 and 105 of Order 21 of the CPC were inserted, ceased to be in force so far as they related to what is provided for by these two rules. The restoration of the dismissal of an execution petition for default comes clearly within the scope of Order 21, Rule 105(1) read with Rule 104 of the CPC and the restoration was certainly possible under that rule. This position stood unaffected by the Full Bench decision of the Madras High Court and the other decisions which followed it.
12. The learned District Munsif has only dealt with the question whether the Court has got inherent power under section 151 of the CPC to restore an application dismissed for default in execution proceedings and held that he had no such power.
13. Unfortunately, the attention of the learned District Munsif was not drawn to the statutory power which he had under Order 21 Rule 105(1) read with Rule 104 of the CPC and to the fact that there was no need for him to go to section 151 of the CPC for exercising the power of restoration. He has also not considered the question of restoring the E.P on merits, if he had power to, restore it in law.
14. I, therefore, allow this revision petition, set aside the order of the lower Court and direct the learned District Munsif to go into the question as to whether on merits, the E.P should be restored under Order 21 Rule 105(1) of the CPC and decide it in accordance with law. In the circumstances of the case, I make no order as to costs.
EF/O/V.B.B
15. Revision petition allowed.
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