Charu Chandra Ghosh v. Chandi Charan Ray Chowdhury Opposite Party.

We are invited in this Rule either to set aside an order by which the Court of first instance refused to restore an application for reversal of an execution sale or to direct the lower Appellate Court to entertain an appeal against that order. The Petitioner had applied to the Court of first instance under r. 90 of Or. 21 of the Code of Civil Procedure of 1908 for reversal of an execution sale. The case had been set down for disposal on the 23rd November 1912. On that day, he was present in Court and found the Judge engaged in the trial of another suit. He left the Court and went on another business. He returned after an hour and found that his case had been meanwhile called on and had been dismissed for non-prosecution, as his pleader had informed the Court that he had received no instructions. He therefore applied to have this order of dismissal set aside. The Court held on the 29th April 1913 that no sufficient cause for non-appearance within the meaning of r. 9 of Or. 9 of the Code had been established and refused to restore the application. The Petitioner then appealed to the District Judge. When the appeal was taken up for disposal, a preliminary objection was taken that the appeal was incompetent. The District Judge gave effect to this contention and rejected the appeal. We are now invited either to set aside the order of the Court of first instance or to direct the lower Appellate Court to entertain the appeal.

The first question for consideration is whether the appeal preferred to the District Judge was competent. It has been argued that the order of dismissal was made under r. 8 of Or. 9 of the Code, that the application for restoration was made under r. 9 of Or. 9 and that consequently under Or. 43, r. 1, cl. (e) an appeal lay to the District Judge. In our opinion there is no foundation for the contention. Cl. (e) of r. 1 of Or. 43 provides that an appeal shall lie from an order under r. 9 of Or. 9 rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit. Here the Petitioner did not prefer an appeal against an order refusing to set aside the dismissal of a suit. What had been dismissed was his application under r. 90 of Or. 21 for reversal of a sale. The language of cl. (e) of r. 1 of Or. 43 is identical with that of cl. 8 of sec. 588 of the Code of 1882. Under that Code, it had been held by this Court in the cases of Sujauddin v. Reazuddin(1) and Jung Bahadur v. Mohadeo Pershad(2) that no appeal lay against an order rejecting an application under sec. 102 for revival of an application under sec. 311 which had been dismissed for non-appearance of the judgment-debtor. The same view had been previously taken in the cases of Ningappa v. Gangawa(3) and Raja v. Srinivasa(4) and has subsequently been adopted by the Allahabad High Court in the case of Ghasiti Bibi v. Abdul Samad(5). We are of opinion that the new Code has not, in this respect, effected any alteration in the law. It has been argued, however, in support of the contrary view that a substantial alteration has been effected in sec. 647 of the Code of 1882, which has been replaced by sec. 141 of the Code of 1908. There is clearly no foundation for this contention. Sec. 647 provided that the procedure therein prescribed should be followed, as far as it could be made applicable, in all proceedings in any Court of civil jurisdiction other than suits and appeals. To this section was added an explanation in 1892, to the effect that, the section does not apply to applications for execution of decrees, which are proceedings in suits. In sec. 141 of the Code of 1908, sec. 647 is reproduced in the following form:— “The procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction. The two alterations effected are, first, that the words “other than suits and appeals” are omitted, secondly, the explanation is omitted. This, however, has not effected any alteration in the law as is clear from the history of the legislation on the subject, as indicated by the decisions in the cases of Thakur Prashad v. Fakirulla(6), Asim Mondal v. Raj Mohan(7) and Hari Charan v. Manmatha Nath(8). In our opinion, it is clear that the appeal preferred to the District Judge was not competent and was rightly rejected.

We have next to deal with the contention that the order of the Court of first instance was erroneous on the merits and should be set aside by this Court in the exercise of its revisional jurisdiction. The Court of first instance accepted the principle laid down in the case of Manilal Dhunji v. Gulam Hosain, which was subsequently followed in the case of Ismail Ibrahim v. Jan Mahmed. In this case it was laid down that where a party has not been taken unawares and where he was under no compulsion to leave the Court, nor could assign any weighty cause for his absence, he took the risk of the case being called on in his absence and could not be said to have established sufficient cause for his absence within the meaning of the Code. Reliance, however, has been placed upon the cases of Somayya v. Subbama and Lalta Prasad v. Ram Karan, in which an attempt was made to draw a distinction between “sufficient cause” and “valid reason” for non-appearance. We are not impressed by the distinction suggested. In any event, upon the facts of the case before us, it is manifest that the Petitioner is not entitled to any consideration from the Court. He was present in Court. He left the Court of his own accord to attend to other business, and he assumed that his own case would not be taken up during his absence. He did not even take the precaution to instruct his pleader. The result was that when the case was called on during his absence, the pleader intimated to the Court that he had no instruction to proceed with the matter. A party who deliberately chooses to act in this way must take the consequence of his own conduct.

The result is that the Rule is discharged with costs. We assess the hearing fee at three gold mohurs.

Rule discharged.