K. Venkata Narasimha Rao v. Hemadri Subyanarayana

The only question that arises here is whether O. 9 applies only to suits or whether, by reason of Sect. 141, it also applies to applications made under O. 9 itself. In this case an application to restore a suit was dismissed for default and a subsequent petition was filed to set aside that dismissal. The subsequent petition has been allowed and the original petition under O. 9 is now under enquiry.

The contention for the appellant is that the Court had no jurisdiction to treat the second application as one to which O. 9 is applicable. In Thakur Prasad v. Fakir Ullah it was laid down by the Privy Council that Sect. 647 of the code of 1882, which is equivalent to Sect. 141 of the present Code, included original matters in the nature of suits such as proceedings in probates, guardianships and so forth and did not include executions. The question at issue in that suit was whether execution petitions were included in that section, and it was definitely laid down that they were not so’ included. What was held to be included were original matters in the nature of suits, but this statement is not exhaustive. It is argued that an application under O. 9 is not an original matter in the nature of a suit. It certainly is not a petition in a suit, for the suit is no longer on the file. It relates to a question quite independent of the suit and one which has to be determined on evidence as to matters which would be quite irrelevant to the suit. In this sense it seems to me to come within the meaning of the Privy Council's observations that Sect. 647 includes original matters in the nature of suits. This view has been taken by the Calcutta High Court in Bipin Beharishaha v. Abdul Barik, by the Lahore High Court in Abdul Rahman Shah v. Shahana and by the Bombay High Court in Lallubhai Vajeram v. Bai Magangavari. There is one authority to the contrary i.e, Ramghulam Singh v. Sheo Deonarain Singh, which purports to follow a Full Bench of that Court reported at page 135 of the same volume, [Bhubaneswar Prasad Singh v. Tilakdhari Lal(5)] but that Full Bench ruling in effect only repeated the decision of the Privy Council in Thakur Prasad v. Fakir Ullah(6) where the question for determination was whether an execution petition would come under O. 9. The Division Bench which purported to follow the Full Bench ruling have not discussed the question at length but merely purported to follow the Full Bench which, with all respect, hardly covered the point in issue. With all respect, I agree with the rulings I have mentioned above and hold that the Court had jurisdiction to entertain this petition.

The Revision Petition must, therefore, be dismissed with costs.

K.S.DPetition dismissed.