Case Note:

Civil Procedure Code (Act V of 1908), Section 15, Order Rule 9 - Execution--Orders, whether fall within Order IX, Rule 9--Dismissal for default of petition of objection to sale in execution--Remedies open to petitioner--Review, inherent power of Court for.

Fletcher, J.

1. I agree in the result of the judgment about to be delivered by Mr. Justice Richardson.

Richardson, J.

2. The appellant is a decree-holder and the respondent is his judgment-debtor. The appellant having applied for the execution of his decree by the attachment and sale of the respondent's holding, the latter preferred an objection on the ground that the holding was a raiyati holding, not transferable without the consent of the landlord. The petition of objection was filed on the 20th February 1914. Notice of it was duly given to the decree-holder and the matter was set down for hearing. There were several adjournments, the last being to the 18th July 1914. On that date the petitioner did not appear and the petition was dismissed for default.

2. The petitioner then applied to have the order of dismissal set aside. The application purported to be made under Rule 9 of Order IX. On the 24th October 1914 the learned Subordinate Judge held that the order having been made in the course of proceedings in execution, the case did not come within the purview of Order IX, He refused, therefore, to set the order aside. But he further held that nowithstanding the order, the respondent was at liberty to file a fresh petition to precisely the same effect as the original petition. The respondent having done so, his objection was allowed and the holding was released from the attachment.

3. Now it is obvious that if this is the law, a judgment-debtor would be in a position to file an unending series of objections on the same ground to the execution of the decree. By neglecting to appear on the date fixed for the hearing of a petition, he would obtain the right to present another. Any order of dismissal for default would be nugatory. The Court would be powerless and the decree-holder might be kept at bay for an indefinite time. The position, therefore, requires some examination.

4. It can hardly be doubted that the proceedings in question were proceedings in execution, and there is authority in this Court for the proposition that section 141 of the code has no application to proceedings in execution and that in consequence such proceedings are outside the scope of the general provisions of the Code relating to suits, such for instance as those contained in Order IX. In this connection the term 'suits' is distinguished from proceedings in execution, which are proceedings in suits, in the nature of interlocutory proceedings. This view appears to be founded on such decisions of the Privy Council as those in Ram Kirpal v Rup Kuari 11 I. A. 37 : 6 A. 269 : 4, Sar. P. C. J. 489 : 3 Ind. Dec. (N.S) 718, Beni Bam v. Nanhu Mal 11 I. A. 181 : 7 A. 102 : 4 Sar. P. C. J. 564 : 4 Ind. Dec. (N.S) 138 and Thahur Prasad v. Fakir-Ullah 22 I. A. 44 : 17 A. 106 : 5 M. L. J. 3 : 6 Sar. P. C. J. 526 : 8 Ind. Dec. (N.S) 393 (P. C).

5. In Ram Kirpal's case 11 I. A. 37 : 6 A. 269 : 4, Sar. P. C. J. 489 : 3 Ind. Dec. (N.S) 718, which was followed in Beni Ram's case 11 I. A. 181 : 7 A. 102 : 4 Sar. P. C. J. 564 : 4 Ind. Dec. (N.S) 138, it was held that the provisions of the Code of 1877 on the subject of res judicata (corresponding to Section 11 of the present Code) did not apply to decisions arrived at in execution proceedings and that the binding force of such decisions depended not on the Code but on general principles of law.

6. In Thakur Prasad's case 22 I. A. 44 : 17 A. 106 : 5 M. L. J. 3 : 6 Sar. P. C. J. 526 : 8 Ind. Dec. (N.S) 393 (P. C), the question was whether an application for execution having been withdrawn without the express permission of the Court to make a fresh application, the decree-holder was debarred from again applying for the execution of his decree. It was held that Section 647 of the Code of 1882 (corresponding to Section 141 of the present Code) could not be so construed as to make Section 373 of the Code (corresponding to Order XXIII, Rule 1, of the present Code) applicable to the case. In stating the reasons for the decision Lord Hobhouse used the language of a general kind. He said:

7. It is not suggested that Section 373 of the Civil Procedure Code would of its own force apply to execution proceedings. The suggestion is that it is applied by force of Section 647. But the whole of Chapter XIX of the Code, consisting of 121 Sections, is devoted to the procedure in executions, and it would be surprising if the framers of the Code had intended to apply another procedure, mostly unsuitable, by saying in general terms that the procedure for suits should be followed as far as applicable. Their Lordships think that the proceedings spoken of in Section 647 include original matters in the nature of suite such as proceedings in probates, guardianships, and so forth, and do not include executions. That is the view taken by the High Court of Calcutta, after consideration of the Allahabad decisions, in the case of Bunko Behary Gangopadhya v. Nil Madhub Chuttopadhya 18 C. 635 : 9 Ind. Dec. (N.S) 423."

8. Lord Hobhouse added:--- On this construction of Section 647 the reasoning of the Allahabad High Court in Sarju Prasad's case 10 A. 71 : A. W. N. (1888) 1 : 6 Ind. Dec. (N.S) falls to the ground. And it is clear both from the Code itself, and from the provisions of the limitation act of 1877, that the Legislature contemplated that there might be a succession of applications for execution. Under the enactments a course of practice has grown up all over India. Whether it is an injurious practice, as intimated by the High Court in this case, is not a question for their Lordships. It appears to be allowed by the law, and it has never been successfully impugned except in Allahabad. The High Court of Bombay, after one contrary decision, and the High Courts of Calcutta and Madras have repeatedly affirmed the legality of the procedure which is struck at by the ruling in Sarju Prasad's case 10 A. 71 : A. W. N. (1888) 1 : 6 Ind. Dec. (N.S)."

9. The law is still the same. Successive applications for execution are still permissible and it has been expressly held that a fresh application may be made even though the previous application was dismissed for default:

Asim Mandal v. Raj Mohan Das 11 Ind. Cas. 385 : 13 C. L. J. 582. Order IX, Rule 9 of the Code does not apply in such a case.

10. A further illustration of the view taken in this Court will be found in the case of Hari Charan Ghosh v. Manmatha Nath Sen 19 Ind. Cas. 683 : 41 C. 1 : 18 C. W. N. 343. There an application made by a claimant against a decree-holder under the provisions of Order XXI, Rule 100, was allowed ex parte. It was held that Order IX, Rule 13, was inapplicable to the case and that the decree-holder's remedy was to institute a regular suit under Order XX, Rule 109.

11. From the two cases last cited it would seem to follow that ex parte orders (or decrees) and orders of dismissal for default made in the course of execution proceedings lie outside the scope of the remedies provided by Order IX when similar decrees and orders are made in suits." It will be observed, however, that the Code provides special remedies in respect of applications for execution dismissed for default and in respect of orders made on applications under Order XXI, Rule 109. Subject to the question of limitation, successive applications for execution may be made and a party aggrieved by any order made on an application under Order XXI, Rule 100, has the right to institute a regular suit.

12. Occasions, however, arise in execution proceedings where the Code provides no remedy for an order made against a party in his absence. If on the face of the record it is clear that the order was made without notice to the party there is no difficulty. On general principles such an order is not binding on him, and he can come in and demand to have the matter heard in his presence. But when on the face of the record the order was apparently made against him in a proceeding of which he had notice, the position is not so easy. Reference may be made to the case of Krishna Chandra Pal v. Protap Chandra Pal 3 C. L. J. 276 and to the case of Diljan Mihha Bibi v. Hemanta Kumar Roy 29 Ind. Cas. 395 : 19 C. W. N. 758, where the decision of the Madras High Court in Subbiah Naicker v. Ramanathan Chettiar 22 Ind. Cas. 899 : 37 M. 462 : 26 M. L. J. 189 : (1914) M. W. N. 205 : I. L. W. 251 is cited.

13. In Diljan Mihha Bibi's case 29 Ind. Cas. 395 : 19 C. W. N. 758 it seems to have been laid down broadly that an application under Order XXI, Rule 90, to set aside an execution sale was in the nature of an original proceeding which was not excluded from the purview of section 141 of the code. It was, therefore, held that Order IX, Rule 9, applied when such an application had been dismissed for default. It may be expedient, if not necessary, that some means should exist of reviewing such an order, but the doubt may be expressed without disrespect, whether it was necessary for the learned Judges to go quite so far in their search for a remedy and whether some other solution of the difficulty which has been felt cannot be found, it will lead to considerable confusion if it be held that section 141 of the code applies to some proceedings in execution and not to others. It is not merely a question of Order IX. Difficult questions may arise in regard to other parts of the Code.

14. It is true that some decisions in execution proceedings are decrees by force of the definition Clause in Section 2 of the Code, but the fact does not affect the nature of such proceedings or the distinction above indicated between such proceedings and 'suits." It is clear for instance from their language that Rules 9 and 13 of Order IX were intended primarily at any rate to apply to "suits."

15. In the particular case of applications to sat aside execution sales, Order XLIII, Rule 1 (j), gives an appeal from an order under Order XXI, Rule 92, setting aside or refusing to set aside a sale. The words of Order XLIII, Rule 1 (j), are wide enough to include an order allowing an application to set aside a sale ex parte, or dismissing such an application for default Kali Kanta v. Shyam Lal Das 38 Ind. Cas. 598 : 25 C. L. J. 163 The Code, therefore, seems to provide a remedy in such cases by way of appeal.

16. In those cases (such as the present) where no special remedy is provided by the Code, it will, in my opinion, be simpler and more satisfactory to maintain the generally received construction of Section 141, that it does not apply to proceedings in execution and to hold that the Courts have, under the general law, aided perhaps by Section 151, an inherent power to review ex parte orders and orders of dismissal for default. This view of the matter was suggested in Krishna Chandra Pal's case 3 C. L. J. 276 and is consistent with the decision of the Privy Council in Bam Kirpal's case 11 I. A. 37 : 6 A. 269 : 4, Sar. P. C. J. 489 : 3 Ind. Dec. (N.S) 718 and with the decision of the Full Bench of the Allahabad High Court in Dhonkal Singh v. Phakkar Singh 15 A. 84 : A. W. N. (1893) 36 : 7 Ind. Dec. (N.S) 770.

17. At any rate for the purposes of the present case it will not be necessary to go further. Here, an application for execution was made. The judgment-debtor preferred his objection and it was dismissed for default. Clearly for the purpose of the application for execution in reference to which the objection was taken, the order of dismissal for default must be binding until it is set aside. The judgment-debtor was not entitled, as the learned Subordinate Judge has held, to ignore the order and to file a fresh petition. If that were the law, the order would be a nullity and the Court would be stultified. We need not consider the effect of the order in reference to a subsequent application for execution, supposing the present application were to be itself dismissed for default. That question does not arise here.

18. The order, then, being binding at the present stage, and in the present proceedings, until it is set aside, it is natural to suppose that there should be some way open to the judgment debtor of getting rid of it, if he could show that his default was not due to his own laches. If the Subordinate Judge was right, as I think he was, in holding that Order IX, Rule 9, was inapplicable he had, nevertheless, in my opinion, inherent power on a proper application being made by the respondent to review the order and to enquire whether the respondent had or had not a reasonable cause for not appearing on the date appointed for the hearing of his petition. Upon the result of that inquiry would depend the question whether the order should or should not be set aside.

19. In this view the appeal must be allowed and the case remanded to the lower Court. The respondent's petition of 12th August 1911, purporting to be made under Order IX, Rule 9, will be treated as an application to the Court in the exercise of its inherent power to review the order of dismissal for default. If that order is set aside, the Court will then hear and decide the respondent's petition of objection. If the application for review fails, the respondent's petition of objection will remain dismissed and the appellant will be entitled to proceed with his application for execution.

20. The costs of this appeal will abide the result of the application for review in the Court below. The hearing fee is assessed at three gold mohurs.