Mootham, J.:— This is an application under section 115 of the Code of Civil Procedure for the revision of an order of the Civil Judge of Farrukhabad dated the 10th February, 1945. The circumstances giving rise to this application are as follows. In the year 1944 Lalla Singh filed a suit in the court of the Civil Judge of Farrukhabad, and on the 10th July of that year the court gave leave to the defendants, the applicants before me, to deliver certain interrogatories to the plaintiff and directed the latter to file his answers thereto by the 26th July. On that date, no answer having been filed and the plaintiff not appearing, the court on the application of the defendants dismissed the suit, purporting to act., under order XI, rule 21 of the Civil Procedure Code.

On the 25th August, 1944, the plaintiff applied to the learned Judge for the restoration of the suit on the ground that on the date on which answers to the interrogatories should have been filed both he and his guardian (the plaintiff being a minor) were seriously ill. The learned Judge was satisfied that, for the reasons given by the plaintiff, answers to the interrogatories could not be filed by the date fixed; and he was further of opinion that his order dismissing the suit was one which in any case he should not have made as he had overlooked the fact that as no order had been made under order XI, rule 11, directing the plaintiff to answer the interrogatories, he had no power under rule 21 of that order to dismiss the suit if the interrogatories were not answered. In these circumstances he was of opinion that the proper course was for him to exercise his inherent powers under section 151 of the Code, and accordingly he, on the 10th February, 1945, allowed the application and directed the restoration of the suit.

This order is now attacked on two grounds. It is said, first, that the order of the learned Judge of the 26th July dismissing the suit was a valid order and, if it were not, the court had no inherent power under section 151 to set it aside as the order was one which was appealable under order XLIII, rule 1(f); secondly, it is said that the order of the court dated the 10th February, 1945, is a nullity inasmuch as it was made on an invalid application—the application being invalid because it was filed not by the plaintiff's guardian but by the plaintiff himself, who was admittedly a minor.

It is in my opinion clear that the order of the learned Civil Judge of the 19th July, 1944, dismissing the plaintiff's suit, was wrong in law. In Rampat Saran v. Habib Ullah Khan(1) it was pointed out that

“An order under that rule (that is to say order XI, rule 21) can be passed only when there is a previous order under rule 11, requiring a party to answer interrogatories. There are two stages in which the application proceeds. The first is indicated in rule 1. Under that rule a party simply delivers certain interrogatories to be answered by the other party. The other party may or may not comply with the request. When the party to be questioned fails to answer the interrogatories, the party interrogating has a right to come before the court and to obtain an order under rule 11 for an answer. It is then that the court decides whether the party interrogated must answer or not….. It is when the court has ordered certain interrogatories to be answered and there is a failure that the question arises whether the failure should be punished and the order enforced by the provision of rule 21.”

It is clear that in this case no order was made by the court under order XI, rule 11, but it is said that the court's original order of the 10th July, allowing interrogatories to be delivered and directing the plaintiff to answer them by the 26th July, amounted to an order within the meaning of rule 11. In my opinion this was not so, for on that date the court did no more than make an order under rule 1, and there can be no doubt the granting of leave under that rule does not amount to an order to answer interrogatories under rule 11: Prem Sukh Chunder v. Indro Nath Banerjee. It is, therefore, to my mind clear that the learned Civil Judge had no power on the 26th July to dismiss the suit; but it is in my judgment equally clear that, having dismissed the suit, he had no authority under section 151 of the Code subsequently to direct its restoration, for it is well established that where a party has neglected to avail himself of a remedy provided by the Code of Civil Procedure it is not open to him to invite the court by virtue of its inherent jurisdiction to disturb a decree or order which he has failed to challenge in a statutory manner: Nageshar Prasad v. Gudrimal Narain Das(2). A court has jurisdiction to pass an order under section 151 whenever it is necessary for the ends of justice or to prevent the abuse of a process of court, but it cannot be said that the exercise of this power is necessary to meet the ends of justice or to prevent the abuse of a process of the court where there is a specific remedy provided by the Code applicable to the circumstances of the case. Order XLIII, rule 1, gives a party a right to appeal from an order passed under order XI, rule 21, and in my opinion, therefore, the learned Civil Judge in passing his order of the 26th July, 1944, acted illegally in the exercise of his jurisdiction.

With regard to the question whether, on the 10th February, 1945, the court had before it a valid application, it is clear that although order XXXII, rule 5(1), says that every application to the court on behalf of a minor shall be made by his next friend or by his guardian for the suit, sub-rule (2) of that order provides that a court may discharge an order which has been made on an application filed in contravention of the provisions of sub-rule (1). In my opinion the court in such cases has a discretion in the matter and it is not bound to set aside such an order if it is satisfied that the order was for the benefit of the minor. This was the view taken in Lalumal Dholumal v. Harumal Lalsing, with which I respectfully agree.

The position is, therefore, that the learned Civil Judge acted illegally in dismissing the plaintiff's suit on the 26th July and that he acted illegally in directing the restoration of the suit on the 10th February 1945. I have no doubt that in passing his order of the 10th February, 1945, the learned Civil Judge firmly believed that he was taking the best step available to remedy the position created by his earlier erroneous order of the 26th July, and that in so doing he was acting for the benefit of the minor plaintiff. In so far as the effect of the one illegal order has been to set aside another illegal order and thus to restore the parties to their original position, I should not be disposed in the exercise of my discretionary powers under section 115 of the Code to set aside the second only of such illegal orders if this course can be avoided. It has however been urged upon me that, in view of the fact that the learned Civil Judge in passing his order of the 25th July acted without jurisdiction or, as I consider, acted illegally in the exercise of his jurisdiction, I have no choice in the matter but must direct that the second of his orders must be set aside. I have been referred to the cases of Asutosh Ghosh v. Indu Bhusan Ghose and Ramasamy Chettiar v. R.G Orr(3). The first of these cases was a civil revision in which Cuming and Page, JJ., considered the extent of the inherent powers of a Judge under section 151 of the Civil Procedure Code, and being of opinion that in the circumstances of the case the Judge of the lower court had improperly exercised his powers under that section they set his order aside. The learned Judges in this case do not, however, appear to have considered whether the order they made was one the making of which was subject to their discretion, nor does it seem that they were invited to do so. In Ramasamy Chettiar's case the application for revision arose out of a suit for damages for breach of a covenant in an agreement which had been wrongly filed in a court which had no jurisdiction to entertain it. Sir Arnold White, C.J, held that the court of first instance exercised a jurisdiction not vested in it by law, and, although he did so with obvious reluctance, he considered that he was bound to interfere.

On the other hand Costeleo, J., in Kuti Ram Bibi v. Jitendra Nath Roy declined to set aside an order of an appellate court, made without jurisdiction, when the effect of so doing would have been to restore an order improperly made by the trial court; and in Rameshwar Mahton v. Dwarka Prasad a Bench of the Patna High Court refused to set aside an order made by a court, although such order was made without jurisdiction. In that case an order had been made dismissing a suit on a preliminary point. It was open to the plaintiff to apply for revision of that order under order XLVII, rule 1, but instead of doing so he asked the trial court for an order restoring the suit to be made in exercise of its inherent powers. The Bench held that in the circumstances the lower court had no power to act under section 151 of the Code, but as the plaintiff would undoubtedly have succeeded had he pursued the remedy allowed by law, namely revision, it was not a fit case for interference.

The exercise by the High Court of the powers vested in it by section 115 of the Code of Civil Procedure is, by the terms of the section itself, discretionary, and accordingly I do not think that the law imposes any obligation on me to exercise those powers in this case. There is no reason to doubt that had the opposite party appealed under order XLIII, rule 1, against the order, dismissing his suit he would have obtained an order for its restoration; and in my opinion this is a fife case in which my discretion should be exercised in favour of the opposite party. The application is accordingly rejected with costs.