1. This is an appeal from an order dated 27th February 1937, passed by the learned Additional Civil Judge of Benares in the following circumstances: The respondents obtained a preliminary decree for sale on the basis of a mortgage against the appellant Munni Singh and made an application for getting that decree made final. The appellant appeared in Court and put in an application to the effect that subsequent to the passing of the preliminary decree he had paid a sum of Rs. 400 to an agent of the respondents. The Court entertained the application and fixed a date for hearing it. The appellant not being present on that date, the Court dismissed his application with the following orders:
This is an objection to the passing of the final decree. It is alleged that Rs. 400 was paid to the mukhtar-i-am of the decree-holder and that the account is wrong. Decree-holder's mukhtar denies that any money was paid to him. As to accounts it is pleaded that in the application Rs. 36,019-2-0 was shown due when really Rs. 36,709-2-0 were due. The judgment-debtor has got no evidence to prove the payment of Rs. 400. As to the accounts I am satisfied that Rs. 36,709-2-0 was due on the date of application. Objection is dismissed with costs.
2. It is to be noted that the appellant's application was treated by the Court merely as an objection to the preparation of the final decree, and that in dismissing, that application the Court considered the merits of the matter and did not merely pass an ex parte order for default of prosecution. The appellant then made an application for the restoration of his previous applications, alleging that he had gone away to call his counsel when the matter was taken up by the Court and could not reach in time.
3. This allegation regarding his absence from the Court under those circumstances was supported by an affidavit. No counter affidavit was filed on the other side, though an objection was taken that the appellant was not entitled to the relief claimed by him. The lower Court rejected this second application of the appellant on 27th February 1937 with the following I orders:
In proceedings for preparation of a final decree, the judgment-debtor pleaded that he had paid Rs. 400 to the mukhtar-i-am of one of the decree-holders. On the date of hearing, according to the affidavit of the objector, he was present in Court. The order of my learned predecessor dismissing the objection of 17th October 1936 does not show that an ex parte order was passed. In the judgment he has remarked that the judgment-debtor had got no evidence to prove payment of Rs. 400. There is no case for setting aside an ex parte order. The order was not ex parte.
As to the mistake in accounts it can be corrected at any time, if it is shown that calculations are incorrect. The application is dismissed with costs.
4. It is from this order that the present appeal has been made. A preliminary objection was taken on behalf of the respondents that the appeal was incompetent inasmuch as the order appealed from was not appealable under any provision of the law. In order to meet that objection, the learned counsel for the appellant argued that the original application made by the appellant in which he alleged that he had paid a sum of Rs. 400 to an agent of the decree-holders was an application under Section 47 of the CPC. In my view that is obviously a wrong contention because the application had been made before the preparation of the final decree and there was no execution proceeding pending at the time. The application could not have been made to an execution Court. Before an order can be deemed to be an order passed under Section 47 of the CPC, there must obviously be an execution proceeding pending at the time and the order must have been passed by an execution Court. O. 21, Er. 1 and 2 also could not apply to the appellant's application because they also deal with the stage of execution. In my view, the appellant's application clearly fell within the purview of O. 23, R. 3 of the CPC. It was really an application to the effect that the decree against the appellant should be deemed to be satisfied to the extent of Rs. 400 in consequence of a payment made by him to an agent of the decree-holders. Any order passed by the Court upon that application must be deemed for be an order refusing to record partial satisfaction of the decree and was clearly appealable under O. 43, R. 1(m). At this stage it must be repeated that the terms in which the order was passed do not show that the Court had not considered the merits of the matter but had only passed an ex parte order for default of appearance. The order was clearly appealable, but the appellant failed to avail himself of that are made provided by the law. Now his application for restoration of his previous application which had been dismissed could not possibly lie under O. 9 of the CPC. It must therefore be taken that this application invoked the inherent powers of the Court to restore an application which had been dismissed. If that view is taken, the order from which the present appeal has been made was passed by the lower Court in the exercise of its discretion under Section 151 of the CPC. It is evident therefore that no appeal lies from that order, and the appeal is consequently rejected as incompetent. The appellant shall pay the respondents' costs.
N.S/R.K
5. Appeal rejected.