Budla Venkateswariah (Minor By Guardian Ramalingam) v. Kasala Sambamma And Another

Judgement

The short point that falls for determination in this revision petition is, whether the Fourth Judge, City Civil Court, Hyderabad, was right in holding that he had no powers either under O. IX or under S. 151 C. P. C., to entertain an application for restoration of a petition made under O. XXI, R. 90 C. P. C. which was dismissed for default.

2. The petitioner is a minor who was represented by his next friend in the execution proceedings pending before the Fourth Judge, City Civil Court. He made his application under O. XXI R. 89 C. P. C. by depositing the necessary amounts. He also applied under O. XXI R. 90 C. P. C. for setting aside the sale on grounds of some material irregularities in publishing and conducting the sale. The latter petition came up for consideration on 15-11-1954.

But that day the minor was found to be unrepresented. The learned Judge therefore dismissed the petition for default and, at the same time, ordered confirmation of sale. The guardian then came with an application on 22-11-1954 through his advocate for restoration of the petition on the ground that he entirely depended upon the pleader and that the pleader suddenly fell ill and therefore could not attend the Court on the date fixed nor could he send his application for adjournment in time.

He also submitted a medical certificate in support of this plea. The learned Judge held that the petition was not tenable in law and the court had no jurisdiction to restore such petition in exercise of its inherent powers.

3. Several rulings have been cited on behalf of the parties. It is not disputed that the order impugned is an order made in execution proceedings. There was a conflict of opinion among the various High Courts as to the applicability of O. IX C. P. C. to execution proceedings. But this has been resolved by the Privy Council in Thakur Prasad v. Fakirullah, ILR 17 AR 106 (A). It is now well settled that the provisions of O. IX do not apply to execution proceedings.

But the question is, can the court in exercise of its inherent powers restore applications dismissed for default or set aside ex parte orders. Even in this regard there is a conflict of opinion. Following the decision in Alagasundaram v. Pichuvier, AIR 1929 Mad 757 (FB) (B) the Court below has rejected the petition. While doing so evidently the learned Judge failed to take into consideration the observation of their Lordships in the said case that resort to inherent powers may be justified in a case of gross injustice where the party has no other remedy.

The petition in that case was one under O. XXI R. 97 and having regard to the provisions of R. 103 it was thought inexpedient to invoke the inherent powers when there was already a remedy open. Thus it is clear that this ruling does not lay down any inexorable rule that the Court has no power to exercise inherent powers in appropriate cases. In the instant case, it is evident that the party has no such remedy as under O. XXI R. 63 or O. XXI R. 103.

Even in cases where R. 63 or 103 applied, the courts in exercise of their inherent power have in fact ordered restoration of the petitions dismissed for default. Ramappa v. Ekambara, AIR 1924 Mad 715 (C) was a case where a petition under O. XXI R. 58 C. P. C. was dismissed for default. The learned Judge, Venkatasubbarao J, observed as follows :-

"Order 21, R. 63 provides that the party against whom an order is made may institute a suit, but subject to the result of such suit the order shall be conclusive. It is said that the words "the order shall be conclusive" have the effect of precluding an application of this kind being entertained. No authority bearing directly on the point has been cited, and I am not prepared to accede to this contention. If the legislature had intended to lay down such a rule, I should have expected to find very clear language employed to indicate that intention.

The words in my opinion do not take away the right of the party to have the order of dismissal for default set aside. Full effect can be given to the words "the order shall be conclusive" by holding that an adjudication, finally made after the setting aside of the dismissal, is conclusive subject to the result of the suit mentioned in the rule."

In Arunachalam v. Veerappa, AIR 1931 Mad 656 (FB) (D) a later decision the question of Courts power to exercise its inherent jurisdiction in restoring an application was not considered at all. Similar was the case in Cannanore Bank v. Madhavi, AIR 1942 Madras 41 (FB) (E).

4. This matter however has been considered by the other High Courts. In Raghunath v. Khatum Bi AIR 1933 Nag 176 (F) Macnair, J. C. held that the Court has inherent powers to restore to file an application under O. XXI R. 58 C. P. C. dismissed for default. The same view was taken in Dawoolal v. Khedu Prasad, AIR 1949 Nag 160 (G) Pratap Singh v. Ambadas Balaji, (S) AIR 1955 Nag 297 (H) Akhoy Kumar v. Krishna Chandra, AIR 1932 Cal 569 (I) and Khemchand v. Niranjanlal, AIR 1954 Raj 15 (J).

Whatever be the view of the Madras High Court in relation to petitions under O. XXI, R. 58 or O. XXI, R. 97 C. P. C. obviously petitions under O. 21 R. 90 stand on a different footing inasmuch as there is no such remedy as in O. XXI, R. 63 or O. XXI, R. 103. In re Valia Mannadiar, AIR 1938 Mad. 495 (K) it has been held that the dismissal of such a petition is well within the inherent powers of the Court.

No doubt in Venkataramudu v. Krishnayya, AIR 1948 Mad. 204 (L) decided by a Single Judge, it was expressed that though dismissal for default is well within the inherent powers, restoration of the same is beyond such powers. But the case of Varadarajan v. Venkatapathi, AIR 1953 Mad 587 (M) is a clear authority on the point that the restoration of a petition under O. XXI, R. 90 dismissed for default is well within the inherent powers and such order would render the confirmation of sale already made ineffective.

That a Court has jurisdiction to restore even an execution petition in certain circumstances has been clearly held in Keshavdeo v. Radha Kisen, AIR 1953 SC 23 (N). Of course, there the Court restored the execution case in order to rectify the mistake that has been committed by the executing Court in not giving an opportunity to the decree-holder to take the necessary steps after it had rejected his petition for giving time to take necessary steps.

It is however clear that the executing court has inherent power not only to dismiss the application in the execution proceedings but also to restore them to file under S. 151 C. P. C. though, save in certain cases, it ought not to resort to S. 151 in so far as restoration is concerned. I therefore set aside the order of the Lower Court and direct that the court below will first go into the question whether the petitioner has satisfactory grounds to be entitled to the restoration of his petition under O. 21, R. 90 which was dismissed for default.

In case the Lower Court is satisfied that the petitioner has good grounds for non-appearance the main petition will be dealt with on merits. So far as the order relating to confirmation of sale is concerned, the principle laid down in AIR 1953 Mad 587 (M) will apply. Costs will abide the result.

Order set aside.