The Judgment of the Court was as follows:—
The Petitioner had instituted a suit in the first Court of the Subordinate Judge of Faridpur on the 9th August 1924 for setting aside a revenue sale in respect of a certain taluk. The suit was dismissed for default, as the Petitioner did not, or, as he says, was unable to, appear on the 5th August 1925. On the 4th September 1925 he applied under Or. 9, r. 9, C.P.C, for restoration of the suit. The Subordinate Judge ordered this application to be registered and ordered the Petitioner to file talabana and processes on or before the 10th September 1925. This order was not complied with. On the 10th September 1925 the case being put up an application was made on the Petitioner's behalf praying for a reasonable time to enable the Petitioner's pleader to communicate with the Petitioner who, it was said, was away at a distant place. The Subordinate Judge granted time by the following order: “On the prayer of the applicant time allowed till 12/9 next for filing talabana and processes.” On the 12th September 1925 the application under Or. 9, r. 9, C.P.C, was dismissed for default as talabana and processes were not filed. On the 20th October 1925 another application was filed by the Petitioner under Or. 9, r. 9 for the setting aside of the aforesaid order of dismissal and for restoration of the aforesaid application under Or. 9, r. 9, C.P.C This application was dismissed by the Subordinate Judge on the 15th December 1925, he having held that such an application did not lie. The material portion of his order runs as follows: “He (meaning the Petitioner) now applies for an order to set aside the order dismissing his application under Or. 9, r. 4 for default. In my opinion Or. 9 does not apply in this case. The miscellaneous proceedings to which sec. 141 applies are matters such as applications for probate, certificate of guardianship, etc., which, when contested, partake of the nature of suits, and not miscellaneous cases of this description. I therefore reject this application.” It is the validity of this order which is in controversy in this Rule.
The contention of the Petitioner is that by virtue of the provision contained in sec. 141, C.P.C, Or. 9 is applicable to all miscellaneous proceedings including a proceeding under Or. 9, and when his application under Or. 9, r. 9 for restoration of the suit was dismissed for default under r. 4 of that order, an application lay under Or. 9, r. 9 for setting aside that order of dismissal and for restoration and re-hearing of the former application under Or. 9, r. 9. The authority which directly supports the Petitioner's contention is the decision of this Court in the case of Bepin Behary Shaha v. Abdul Barik . The learned Judges who decided that case relied upon the reason of the Rule in Diljan Nichha Bibi v. Hemanta Roy (2), in which an application for setting aside a sale under Or. 21, r. 90, C.P.C, had been dismissed for default and it was held that Or. 9 was applicable for setting aside that order of dismissal. They proceeded to observe as follows:—“In this case als, in a similar way, the application for restoration of the case under Or. 9, rr. 4 and 9 may be treated as an original application although no fresh parties are interested in the case. The proceeding is initiated by an application which has to be numbered as a separate miscellaneous case and decided upon evidence.” It was further suggested that this application under Or. 9, r. 9 might also be treated as an application for review as Or. 47, r. 1 which applies to all orders of the Court that may be reviewed under certain circumstances: but with this matter we are not concerned for the moment.
An elaborate research into the history of sec. 141 and an exhaustive analysis of the case-law bearing on it will be found in the recent judgment of Page, J., in the case of Basaratulla Mean v. Reazuddin Mean . Now amidst the hopelessly conflicting mass of judicial decisions which have clustered round sec. 141 and sec. 647 which stood in its place before, the solid bed-rock on which it is safe to take one's stand is the decision of the Judicial Committee in the case of Thakur Prasad v. Fukirullah . Their Lordships' decision makes it perfectly plain that the section does not apply to applications for execution, but only to “original matters in the nature of suits, such as proceedings in probates, guardianships and so forth.” The expression “so forth” must in my opinion be read as meaning proceedings ejusdem generis with the instances that precede it, and include such proceedings as in divorce, in insolvency, for succession certificate and the like, and the expression “original matters” in my opinion confirm that view as meaning matters which originate in themselves and not those which spring up from a suit or from some other proceeding or arise in connection therewith. The criterion of originality as indicated in Bepin Behary Shaha v. Abdul Barik in the passage quoted above is not what is meant. This passage has been construed by the learned Judges of the Allahabad High Court as meaning that the second application might be treated as an original application for restoration of the suit itself [Pitambar Lal…(Opposite-Party); v. Dodi Singh…(Petitioner).* ]; but with all respect I am unable to agree that is what the passage means. I think the true meaning of the passage is that, in the opinion of the learned Judges, a proceeding which originates in a new application which has to be numbered as a separate miscellaneous case and decided upon evidence satisfies the requirements laid down in the decision of the Judicial Committee. In this view I am unable to concur. On the other hand, I entirely agree with the learned Judges of the Allahabad High Court in the view expressed in the case of Pitambar Lal…(Opposite-Party); v. Dodi Singh…(Petitioner).* that if the fresh application is treated as an application to restore the suit itself and not to restore the first application, and is within time, there can be no bar to its being dealt with as an application under Or. 9, C.P Code.
The foundation of the decision in Bepin Behary Shaha v. Abdul Barik therefore is, in my opinion, wrong, and after the shock it has received in numerous authoritative decisions of several Courts can no longer be relied upon. I have already referred to the case of Basaratullah Mean v. Reazuddin Mean in which the authorities are collected. I may specially mention also the decisions of the Patna High Court in Bhubaneswar Prasad Singh v. Tilakdhari Lal and Ram Gulam Singh v. Sheo Deonarain Singh (7) and that of the Allahabad High Court in Pitambar Lal…(Opposite-Party); v. Dodi Singh…(Petitioner).* to which I have already referred. The last two of the aforesaid cases directly dealt with an application which arose out of the dismissal of a suit as in the case now before us. The Madras High Court also appears to have taken the same view as has been adopted in Patna and in Allahabad.
I am accordingly of opinion that the learned Subordinate Judge is right in the view he has taken and that the Petitioner's application in so far as it purported to be one under Or. 9, r. 9, C.P.C, was not competent. At the same time, however, I am of opinion that the duty of the learned Judge did not end in disposing of the application on that ground alone as he appears to have done. The Code has made no express provision for a case like this, and it is natural to suppose that there should be some way open to the Petitioner to get rid of the order which was passed on the 12th September 1925 if he can show that his default was not due to his laches. The application which he presented on the 28th October 1925 cannot by reason of the bar of limitation be entertained as a second application for setting aside the ex parte decree. To meet cases such as this sec. 151 of the Code was enacted, and where there is no provision in the Code expressly providing for a remedy and none which prohibits a remedy being administered and such remedy is called for in order to do that real and substantial justice for the administration of which it exists, the provision of sec. 151 may and should be resorted to. This substantially is the view that has been taken of the applicability of this section in a matter of this kind in the cases of Ganesh Prosad v. Bhagelu Ram (8) and Bharai Chandra Nath v. Iasin Sarkar and I am disposed to adopt in the present case the course that was followed in the last mentioned case. I would accordingly direct that the application of the Petitioner, dated the 20th October 1925, will be treat which, unless steps are ed by the Court below in the exercise of its inherent power ex debito justitce to review the order of dismissal for default passed on the 12th September 1925. The Rule therefore will be made absolute in these terns, but in view of the farts of the case no order will be made as to the costs in the Rule.
P.C