The questions which arise in this case are whether (1) the provisions of O. 9, Civil Procedure Code, apply to proceedings instituted under R. 100 of O. 21 of the Code, and (2) whether, otherwise, the Court has inherent power to set aside the dismissal for default of an application made under R. 100 where the ends of justice render it necessary to do so. The material facts of the case are these:—The Petitioner before us obtained a decree for money in S. C. S. No. 955 of 1923 on the file of the Madura Sub-Court against the Respondent's mother. In execution of that decree, the immovable properties to which the application relates were sold and purchased by the decree-holder himself. He subsequently obtained possession of those properties through Court dispossessing the Respondent who is a minor. The present application was thereupon put in on his behalf alleging that the applicant was in possession of the properties on his own account and praying that he should be restored to possession. Upon this application notice was ordered to the auction purchaser and a date was fixed for the hearing of the application. On that date when the case was called on, the applicant did not appear but the auction-purchaser did; and the application was therefore dismissed for default. The Respondent's guardian thereafter applied under O. 9, R. 9, for the setting aside of the order of dismissal. That petition was opposed by the auction-purchaser. The District Munsif after hearing both the parties ordered the restoration of the application. Against that order this Revision Petition has been preferred.

It is contended on behalf of the auction-purchaser who is the Petitioner before us that the District Munsif acted without jurisdiction in restoring the application of the Respondent under R. 100 which had been dismissed for default as the application under R. 100 is a proceeding in execution of a decree to which O. 9 does not apply. It is further argued that the order of the District Munsif is also bad as he has given no reasons for setting aside the order of dismissal and that on that ground also it should be set aside.

On behalf of the Respondent it is argued that an application under R. 100, is not an application in execution of a decree but that it is an independent original proceeding to which O. 9 applies by force of’ Sect. 141, Civil Procedure Code. It is further argued that if O. 9, does not apply the Court which deals with such an application has inherent power in the interests of justice to restore the application which has been dismissed for default, which order also must be taken to have been passed by the Court in the exercise of its inherent power. These questions were argued before us at great length and we were referred to most of the authorities bearing on them. There is no doubt a conflict of authorities on both the questions. The authorities cited relate to the applicability of O. 9 not only to proceedings instituted under R. 97 or 100 of O. 21 to which the auction-purchaser in the Court sale and a person not a party to the suit or decree are parties, but also to proceedings under R. 90 for setting aside sales of immovable properties held in execution of decrees and to proceedings instituted by claimants under R. 58 with reference to properties attached in execution of decrees. The broad contention put forward on behalf of the Petitioner (auction-purchaser) is that all such proceedings are proceedings in execution of a decree to which O. 9 does not apply, the leading authority for that contention being the decision of their Lordships of the Privy Council in. Thakur Prasad v. Fakirullah(1). It is also contended that the Court has no inherent power to restore an application dismissed for default, especially in those cases in which the Legislature itself has provided a remedy by suit. For the purposes of the present case it seems to us to be unnecessary to consider the question whether the applications which are instituted by third parties under R, 58 preferring claims to properties attached in execution of a decree are proceedings in execution of the decree or whether they are independent proceedings in the nature of original suits though they relate to property attached in execution of the decree, nor is it necessary to consider whether an application under R. 90 whether made by a judgment-debtor or decree-holder for setting aside a sale in execution of a decree should or should not be viewed as a proceeding in execution of a decree, as we consider that applications made under R. 97 or 100 are in their nature essentially different. Those applications do not concern the parties to the suit or decree as such. When the auction-purchaser is also a stranger to the suit, the proceedings under R. 97 or 100 are entirely between persons who are not parties to the suit or decree. Even when as in the present case the decree holder himself is the auction-purchaser, it is not in his character as decree-holder that he is a party to such proceedings. Further, unlike applications under R. 90 which are made during the pendency of applications for the execution of a decree and the result of which would materially affect the further course of the execution proceedings, the applications under Rr. 97 and 100 come to be made when the execution of the decree is over. When the sale is confirmed, the decree is satisfied pro tanto, irrespective of whether the auction-purchaser is the decree-holder or a third party, and the result of the application under either of those rules will not affect the further course of the execution proceedings or reopen the execution of the decree to any extent. If the claim of the dispossessed party is allowed the remedy of the auction-purchaser in such a case even when he is also the decree-holder is to file a suit as provided in R. 103. We think therefore that the authorities which following the Privy Council decision in Thakur Prasad v. Fakirullah, lay down that O. 9 does not apply to applications for execution of decrees or applications in execution of decrees, do not affect applications made under R. 97 or 100 which in our opinion cannot be regarded as applications either for execution of the decree or in execution of the decree. So far as the Privy Council decision in Thakur Prasad v. Fakirullah, is concerned upon which the learned Advocate for the Petitioner chiefly relied, we are unable to accept his contention that any application whatever may be its nature and by whomsoever made must be deemed to be an application in execution of a decree, if it is made under any of the rules in O.21 In that case their Lordships were dealing with an application for the execution of a decree which the High Court of Allahabad held was barred under Sect. 373 of the old Code corresponding to O. 23, R. 1 of the present Code, as the previous application for execution of the same decree had been withdrawn without an order of Court granting liberty to file a fresh application in respect of the same matter. Their Lordships held that the view taken by the Allahabad High Court was wrong and that Sect. 373 which relates to suits, does not apply to proceedings in execution. The Petitioner's Advocate relies upon the following passage in their Lordships' judgment as laying down in broad terms that all proceedings, whatever may be their nature, which are made under any of the rules in O. 21 must be considered to be a proceeding in execution and that the procedure which is prescribed in the Code for suits does not apply to any of those proceedings. The passage relied on runs thus: “It is not suggested that Sect. 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 Sect. 647. But the whole of Chapter 19 of the Code consisting of 121 sections is devoted to the procedure in executions, and it will 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 suit should be followed as far as applicable. Their Lordships think that the proceedings spoken of in Sect. 647 include original matters in the nature of suits 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 a consideration of the Allahabad decisions in the case of Bunko Behary Gangopadhya v. Nil Madhub Chuttopadhya(2). On this construction of Sect. 647 the reasoning of the High Court in Sarju Prasad's case 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.” Chapter 19 of the old Code has in the present Code been re-enacted as O. 21. We do not think that their Lordships, in observing that the whole of Chapter 19 of the Code consisting of 121 sections (now O. 21, Rr. 1 to 103), are devoted to the proceedings in execution intended to lay down that every proceeding which may be taken under any rule of that chapter is a proceeding in execution whether in fact it concerns or not the execution of a decree. Their Lordships' observations though general in terms have to be construed with reference to the actual case which they had to decide and they have been so Construed in those cases which were referred to us in which O.9 has been held to be applicable not only to proceedings instituted under R. 97 or 100 but also under Rr.58 and 90. As we have already observed we are not directly concerned in this case with the decisions passed with reference to the proceedings instituted under R. 58 or 90.

The distinguishing feature between applications under Rr. 97 and 100 and applications made under Rr. 58 and 90 is that while the latter are made in the course of the execution proceedings with reference to pending applications for execution of the decrees, the former are quite unconnected with any pending application for the execution of the decree. An application under either of those rules which may be entirely between third parties and in which the questions raised do not in any way affect the execution of the decree cannot with any propriety be held to be a proceeding in execution merely because those rules occur in O. 21.

Confining overselves to the authorities which relate to proceedings under Rr. 97 and 100, we are of opinion that the view taken in those cases which hold that they are not proceedings in execution of a decree and that they are more in the nature of original proceedings to which O. 9 is applicable by force of Sect. 141 is the sounder view to take, and we would ourselves have adopted that view in this case but for a direct decision of Devadoss, J., concurred in by Waller, J., in Kaliakkal v. Palani Koundan to the contrary. In that case which is directly in point the learned Judges have held that proceedings under Rr. 97 to 101 are execution proceedings and therefore O. 9 does not apply to them. In that view they held that the District Munsif had no jurisdiction to set aside under O.9, R. 13, an ex parte order passed by him on the application made in that case.

The same view is taken in Hari Charan Ghose v. Manmatha Nath Sen but the opposite view is taken among others in Sheonandan Chowdhury v. Debi Lal Chowdhury, Satya Narain v. Gobind Sahay(3). In Hari Charan Ghose v. Manmatha Nath Sen Jenkins, C. J., rests his conclusions not only upon the interpretation of Thakur Prasad v. Fakirullah(4), but also on the ground that the circumstance that a remedy by suit is given is a clear indication that O. 9 should not, and does not apply. With the latter part of the reasoning of the learned Chief Justice we are unable to agree. In an application made under R. 100 all that the applicant has got to show is that when he was ousted from possession he was in possession on his own account and not on account of the judgment-debtor. If he establishes that fact his petition must be allowed. But if he is obliged to bring a suit to recover possession, he will have to make out that he has a good title to the property which is a much more onerous position. There seems to be no sufficient reason why, if a party to those proceedings, whether appellant or respondent, is unable for no default on his part to be present at the hearing and the application is either dismissed for default or ordered ex parte, he should be debarred from having it reheard and that he should be driven to a regular suit. The dismissal of an application for default is, as pointed out by their Lordships of the Privy Council in Bakhsh Singh v. Habib Shah(5), intend ed to be a punishment for wilful default, and gross injustice will be done if it is to be inflicted in cases where there has been no default.

In Ramappa Chettiar v. Ekambara Padayachi(6), which related to a claim petition, Venkatasubba Rao, J., overruled the contention that the restoration of a claim petition which was dismissed for default cannot be made, because under O. 21, R. 63 the claimant has a right of suit. The contrary view that proceedings under R. 97 or 100 are not proceedings in execution but are independent original matters in the nature of suits and that therefore O. 9 applies to such applications by force of Sect. 141 is held in the following cases among others:—Sheonandan Chowdhury v. Debi Lal Chowdhury, Satya Narain v. Gobind Sahay. In our opinion the claim which is put forward by a stranger to a decree in order to avail himself of the summary remedy given to him by R. 100 for recovery of possession of immoveable property from which he has been dispossessed is an original matter in the nature of a suit and it cannot by any stretch of language be considered to be a proceeding in execution of a decree. We need scarcely add that the enumeration of original matters in the nature of suits which are mentioned in their Lordships' judgment in Thakur Prasad v. Fakirullah, and on which the Petitioner's Advocate laid stress are merely illustrative as the language used by their Lordships clearly shows. As regards the second question, if O. 9 does not apply to proceedings under Rr. 97 to 100, then the dismissal of this application for default can be made only in the exercise of the Court's inherent power to dismiss any application which prima facie is not prosecuted. If that is so, it is difficult to see why the Court should not equally have the inherent power to set aside an order of dismissal when it is shown that the non-appearance was due to no default on the part of the applicant but to some accident which prevented him from appearing. In such cases no further application for the same relief can be put in, and it will work serious injustice if the Court can neither interfere under O. 9, R. 9 nor under the inherent power to set aside the order of dismissal which the Court would not have made if at that time it had been aware of the real facts of the case. In support of the view that the Court has such inherent power and that it is bound to exercise it where the interest of justice requires it to do so, we may refer to the case in Bholu v. Ram Lal which follows the decision of the Privy Council in Bakhsh Singh v. Habib Shah already referred to. But there are observations in some other cases which imply that the Court has no such inherent power. Even as regards applications for execution of a, decree which for no default of the applicant is dismissed for non-appearance, the mere ground that a fresh application for execution is competent should not be held to be a sufficient ground for holding that the Court cannot restore the application so dismissed in the exercise of its inherent power, when the interests of justice render such order necessary. A fresh application, though permitted by law may be of no use because it may be barred by limitation either under the Limitation Act or under Sect. 48, Civil Procedure Code. It seems to us that the conflict of authority which exists on the questions arising in this case cannot but prove embarrassing to the litigants and the Courts, and that it is eminently desirable to have an authoritative ruling of a Full Bench on those questions. We therefore refer to a Full Bench the following questions:—

(1) Does O.9 of the Civil Procedure Code apply to proceedings instituted under R. 97 or 100 of O. 21?

(2) If the above question is answered in the negative, has the Court an inherent power to set aside the order of dismissal for default or an order passed ex parte against the Respondent in those applications on sufficient cause being shown?

[This petition came on for final hearing on 22nd and 23rd April, 1929 before a Full Bench constituted as above].

OPINION.

Wallace, J.—The two questions referred for the decision of the Full Bench are:—

(1) Does O. 9 of the Civil Procedure Code apply to proceedings instituted under R. 97 or 100 of O. 21?

(2) If the above question is answered in the negative, has the Court an inherent power to set aside the order of dismissal for default or an order passed ex parte against the respondent in those applications on sufficient cause being shown?

As to the first question, it is not contested that O. 9 does not apply to proceedings in execution except such as involve the determination of any question under Sect. 47, in which case the orders thereon would amount to decrees see Subbiah Naicker v. Ramanathan Chettiar and Kailash Chandra Tarapdar v. Gopal Chandra Poddar—decisions which have been followed in this Court in Kaliakkal v. Palani Koundan and Narayana Chettiar v. Mutha Chettiar] and the argument at the bar has settled round the question whether proceedings under Rr. 97 and 100 of O. 21 are proceedings in execution at all. If they are proceedings in execution, it must also be admitted that there is a certain amount of over-lapping in the Code, since cases might arise in which the proceedings would on the face of them, come both under Sect. 47 and under R. 97 or 100; for example, cases of obstruction to delivery to the decree-holder under R. 97 by a judgment-debtor or some other party to the suit at his instigation, or cases of some other party to the suit than the judgment-debtor being dispossessed under R. 100 by the decree-holder or the auction-purchaser. Such cases will come both under Sect. 47 and under R. 97 or 100 and a different procedure would be adopted according to the category in which the Court placed the proceedings. Presumably in a case of such conflict, the main Sect. 47 would prevail over the rules in the First Schedule, and, if so, the orders passed in the proceedings would be decrees and O. 9 would apply. The fact of such over-lapping is not to my mind a sufficient reason in itself on which to decide that orders under Rr. 97 and 100 are not proceedings in execution.

The more general question is whether O.9 applies to proceedings under Rr. 97 and 100, and the answer to that really depends on the question whether such proceedings are proceedings in execution. There is no definition of “execution” in the Code and the only guide we have as to what the Legislature intended that word to cover is the contents of O. 21, which is headed “Execution of decrees and orders.” Rr. 97 and 100 come under that heading. Prima facie then the Legislature intended that proceedings under these rules should be regarded as included under the word “execution.”

The Respondent in the Civil Revision Petition from which this reference arises contends that execution conies to an end when the decree is satisfied, and that, when the decree is not for possession and the decree-holder has obtained his money by the Court-sale, it is improper to hold that any question of possession is a matter of the execution of the decree. He points out that a proceeding under R. 97 or 100 may not be at all between the parties to the suit; for example, it may be between a stranger auction-purchaser at the Court-sale and a stranger obstructing in one case or dispossessed in the other. He argues that it would be an anomaly to regard proceedings between two strangers to the suit as proceedings in execution of the decree in the suit. There is a great deal of force in this contention and it has weighed with the referring Judges, of whom I was one. Nevertheless, on further consideration, I am constrained to hold that it does not outweigh the inference from the inclusion of these proceedings in the Order relating to the execution of decrees and orders. It does not seem reasonable to hold that the Legislature intended us to draw, so to speak, a dividing line after R. 96 and say that all rules below this line do not relate to execution. In fact, as already indicated, they may in certain cases relate so closely to execution that they would properly fall to be decided under Sect. 47. The legislature was clearly not prepared to draw the distinction which the respondent seeks to make. For example R. 100 covers both the case of dispossession by the holder of a decree for possession and dispossession by an auction-purchaser of property Bold in execution of a decree. The first dispossession is clearly in the course of execution of the decree for possession and there is no hint that the Legislature intended that the second dispossession should not equally be regarded as in execution. Otherwise, we will have to suppose that the Legislature intended us to draw the dividing line right through R. 100 itself. Similarly R. 97 covers the case of obstruction to the holder of a decree for possession, and the dividing line will have to be drawn through it also. Proceedings under Rr. 97 and 100 follow as sequelae on the execution of the decree (using the word “execution” in its stricter sense) and on the Court sale, and the legislature has enacted that such proceedings shall be regarded in law as part of the execution proceedings. There is really very little more to be said on this part of the case. It may be noted also, however, that an application under R. 97 or 100 must be put in to the executing Court, which may or may not be the Court before which the suit for possession would fall to be tried, This point has to be decided not so much on any general theory as to what execution may be or may include but on what the Legislature has laid down that it shall include.

If it is an execution proceeding, then Sect. 141 on which the respondent relies, will not avail. It is argued that Sect. 141 will apply to all execution proceedings which are not applications for execution, but I think it is a distinction without a difference. An application under the execution O. 21 will ex facie be an application for execution. Besides this, the general trend of authority which has interpreted the leading Privy Council, case on this section or rather on the old Sect. 647 corresponding namely, Thakur Prasad v. Fakirullah, is against the idea that Sect. 141 applies to execution proceedings at all. The Privy Council laid down that the old Sect. 647 was intended to exclude from its purview the whole of the old Chapter 19 which is devoted to the procedure in execution. The old Chap. 19 is now O. 21 and both Rr. 97 and 100 were in Chapter 19 as Sects. 328 and 332. With this Privy Council decision before them, the framers of the amended Code made no substantial change in the general wording of Sect. 647 beyond omitting the explanation which was unnecessary in view of the Privy Council decision, and re-enacting Sect. 647 as the present Sect. 141.

Of the many cases and rulings cited at the bar, not many are of assistance. The state of the law in the Calcutta and Patna High Courts was for some time uncertain and rulings on either side may be and have been cited from both Courts. But the Full Bench in Kailash Chandra Tarapdar v. Gopal Chandra Poddar, has finally settled the law for the Calcutta High Court and that ruling is against the respondent. In Patna, Sheonandan Chowdhury v. Debi Lal Chowdhury and Satya Narain v. Gobind Sahay, are in favour of the respondent's view, but the Full Bench in Bhubaneshwar Prasad Singh v. Tilakdhari Lal which interprets the Privy Council case as covering all proceedings in execution, is entirely against him.- So that both the High Courts of Patna and Calcutta have decided against the respondent's view.

It is therefore obvious that Sect. 141 does not apply to such proceedings under O. 21 as are not also proceedings under Sect 47. Therefore on the first question the answer is that O. 9 does not apply to such proceedings under B. 97 or 100 as do not also fall within Sect. 47.

As to the second question, that is, the Court's inherent power to set aside the order, the Respondent urges that the Court must have inherent power to set aside its own order of dismissal for default. The contention is that, where the Court is not restricted by the sections of the Code, it has inherent power to do anything in the name of justice. Such a contention in substance is that the Civil Procedure Code is not a Code, conferring powers on a Court but is a Code restricting and delimiting its unlimited powers. To such a view we cannot subscribe. It would allow the Court to do any act whatever provided there was no provision in law directly prohibiting that act being done and would in effect put the Court above the written law altogether. The ordinary Civil Court derives its powers from the Civil Procedure Code and other statutes and possesses only such powers as are therein conferred. The inherent power, so far as it exists, is itself a matter of statute (see Sect. 151 of the Civil Procedure Code). It has been held by a Full Bench in Gadi Neelaveni v. Marappareddigari Narayana Reddi that, in the case of setting aside ex parte decrees, the Court has no inherent power and can only act under O. 9, R. 13. It would be surprising if, in the matter of execution, the Court has inherent powers which it does not possess in the case of a suit. The resort to inherent powers may be justified in a case of gross injustice where the party has no other remedy. But here the party has his remedy by way of suit. This is the principle which has been adopted in several cases in this Court See Kaliakkal v. Palani Koundan, Narayana Chettiar v. Muthu Chettiar, Ramaraghava reddi v. Raja of Venkatagiri. In Ramappa Chettiar v. Ekambara Padayachi a single Judge of this Court has ruled that a Court has inherent power to restore a claim petition under B. 58 dismissed for default but no authority has been cited or dealt with on the point. On full consideration and giving weight to the matters set out in the order of reference, I think we should not be justified in laying down any general principle that an Ordinary Civil Court has inherent power to set aside its own order and to interfere in any case in which it thinks a failure of justice has occurred when the aggrieved party has another remedy by which it can be set aside, even though the remedy is not as summary or as cheap. As a matter of fact the respondent might have come forward at the earlier stages of the execution proceedings, for example, when the property was attached, and did not choose to do so but waited until the final proceedings for delivery were going on, and then failed to appear and prosecute his case.

I therefore would answer both the points referred to the Full Bench in the negative.

Beasley, J.—I agree.

Madhavin Nair, J.—I agree.

Wallaae, J.—This opinion will be sent back to the Division Bench of which I shall be a member. The matter of costs will be decided then.

N. R. R.