The Judgment of the Court was as follows:—
Cuming, J.:— The facts of the case out of which these two Rules which were granted by my learned brothers Greaves and Panton, JJ., arise are briefly there: A certain property was mortgaged by the tenant one Ganga Charan Sen. A mortgage decree was obtained. The Petitioner is the assignee of this mortgage decree. The mortgage decree was obtained on the 19th July 1922. The landlord of the tenant who had mortgaged the property obtained a rent decree against the tenant for arrears of rent of the property. The property was sold in execution of the rent decree on 22nd November 1924. The Petitioner coming to know of this made an application on 20th January 1925 under Or. 21, r. 90 to set aside the sale on the usual grounds. Notices were issued and after various adjournments the case was fixed for 4th July 1925. When the case was called on for hearing neither party was present and the Munsif dismissed the application. The Petitioner then applied under Or. 9, r. 4 to the Munsif on 6th July 1925 to restore the case and also on 9th September 1925 made an application, under Or. 47, r. 1, for a review of the order.
Both these applications were rejected. The learned Munsif held following the ruling in Narendra Nath v. Rakhal Das (1) that Or. 9 of the Code does not apply to execution proceedings. With regard to the application for review the learned Munsif held that Or. 47, r. 1 had no application. Against these two orders these Rules have been obtained. The Rules must be discharged for the following reasons:— In the first place I cannot see how either order comes within the mischief of sec. 115, Civil Procedure Code.
Take first of all the order of the learned Munsif refusing to review the order under Or. 47, r. 1.
The contention is that by so doing he refused to exercise a jurisdiction vested in him by law and by misdirecting himself in the interpretation of the ruling cited by him in the exercise of the jurisdiction acted illegally and with material irregularity. With regard to the first part of the contention it is not correct to say that the learned Munsif refused to exercise a jurisdiction vested in him by law. An application was made to him to review a certain order. The application was duly registered. The pleaders on both sides were heard and the learned Munsif decided after hearing them and relying on certain decision of this Court that the application did not come within Or. 47, r. 1, because the reasons for which he was asked to review his order did not full within the provision of Or. 47, r. 1. He did not, therefore, refuse to exercise his jurisdiction. Had he refused to consider the petition at all that would have been a refusal to exercise his jurisdiction; but he did consider it, heard the parties and came to a decision that this was not a case in which he could review his former order under Or. 47, r. 1. Obviously if it were to be held that a Munsif go acting refused to exercise his jurisdiction there would always be what amounts to an appeal whenever a Court refused to review its judgment.
Yet Or. 41, r. 7 provides that there is no appeal against such an order.
As for the second ground, that he misdirected himself as to a point of law and so acted in the exercise of his jurisdiction illegally or with material irregularity it only requires to be stated to be rejected. A Court cannot at the same moment refuse to exercise his jurisdiction and act in the exercise of it with material irregularity. The one ground excludes the other.
The order of the learned Munsif rejecting the application for review does not attract the provision of sec. 115, C.P.C
Finally on its merits the order is so obviously right that the learned Advocate who appeared for the Petitioners did not seriously attempt to assail it. This Rule must be discharged with costs.
Taking now the other Rule No. 1474.
In this Rule the Petitioner had applied to the Court under Or. 9, r. 4 to restore his application which had been dismissed on account of the absence of both parties. Here again the Munsif heard the parties and after hearing them decided relying on a decision of this Court that Or. 9, r. 4 did not apply to execution proceedings. He exercised his jurisdiction and came to a decision. The decision may be right or may be wrong. But if wrong, he has at the most been guilty of an error of law which cannot form the subject of revision under sec. 115. It may be noted that the same two self-contradictory grounds are given in this Rule also that I have referred to in dealing with the former Rule. On the merits it has no substance. The learned Advocate for the Petitioners has contended that there are conflicting rulings on this point in the Court, viz., whether an application to set aside a sale under Or. 21, r. 90 is or is not a proceeding in execution. If it is, it is admitted that Or. 9, r. 4 has no application. If it is not, it is contended that Or. 9, r. 4 does apply. No doubt there are conflicting rulings on the point, the case of Deljan Nichha Bibi v. Hemanta (2) being an authority for holding that such applications are not proceedings in execution while the opposite view has been taken in the case of Narendra Nath Chatterji v. Rakhal Das Tarafdar . The learned Advocate for the Petitioners has contended that in view of these conflicting decisions we must refer the case to a Full Bench. I see no necessity for any reference, for it seems to me quite clear on the authority of the case of Thakur Prosad v. Fakiruulla (3), a case of the Privy Council, with special reference to page 111, that an application under Or. 21, r. 90 is a proceeding in execution.
Their Lordships remark:—
“It is not suggested that sec. 373 of the Civil Procedure Code (the old Code of 1882) would of its own force apply to execution proceedings.
The suggestion is that it is applied by force of sec. 647 (now sec. 141). But the whole of Chap, XIX of the Code consisting of 121 sections is devoted to the procedure in execution 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.”
Now sec. 311 which corresponds to Or. 21, r. 90 is one of these 121 sections referred to contained in Chap. XIX. Clearly therefore the Privy Council hold that the procedure applicable to suits is not to be applied by sec. 647 (now sec. 141) to application under sec. 311 (now Or. 21, r. 90). In the circumstances I am bound to follow the ruling of the Privy Council and there is no room for a reference to a Full Bench.
There is a further reason why we should not interfere. If Or. 9, r. 4 does apply the Petitioner can make a fresh application. If it does not and if the application under Or. 21, r. 90 is to be considered as a proceeding in execution there is nothing in the Code, as far as I can see, which would bar a fresh application when an application has been dismissed for the default of both parties. When there is an alternative remedy I should be slow to interfere by way of revision.
This Rule also must be discharged.
Costs, two gold mohurs in each Rule.
Page, J.:— These two Rules have been obtained under sec. 115 of the Civil Procedure Code for revision of two orders passed by the third Munsif of Sudharam on the 14th December 1925 (1) dismissing an application by the Petitioners for a review of an order of the learned Munsif on the 4th July 1925 by which he dismissed the Petitioners' application under Or. 21, r. 90 to set aside an execution sale on default of appearance, (2) dismissing an application by the Petitioners under Or. 9, r. 4 for an order setting aside the dismissal of the said application. The learned Advocate for the Petitioners admitted that in the circumstances obtaining in this case there was no ground upon which the Court would be entitled to review the order in question either under Or. 47 of the Code [Chhajju Ram v. Neki (4) and Bindu Bashini Roy Choudhnri v. Secretary of State for India (5)]; or in the exercise of its inherent jurisdiction, or that which the Court possesses under sec. 151 of the Civil Procedure Code [Debi Baksh Singh v. Habib Shah (6), Bharat Chandra Nath v. Iasin Sarkar (7), Lalta Prosad v. Ram Karan (8) and Bilasirai v. Cursondas (9)].
When the application under Or. 21, r. 90 was called for hearing on the 4th July 1925 neither party appeared, and the learned Munsif dismissed the application in default of appearance and subsequently rejected the Petitioners' application for the restoration of the application to set aside the sale upon the ground that Or. 9, r. 4 did not extend to execution proceedings, and therefore, he had no jurisdiction to hear the application. The learned Advocate for the Petitioners contended that the learned Munsif in taking this course “faded to exercise a jurisdiction with which he was vested” (sec. 115), and urged that the order of 14th December ought to be set aside, and the learned Munsif directed to hear and determine the Petitioners' application for the restoration of the case on the merits. The question which falls for determination is whether the provisions of Or. 9, r. 4 are extended to execution proceedings by sec. 141 of the Civil Procedure Code. As it is conceded that Or. 9, r. 4 is not made applicable to proceedings in execution otherwise than under sec. 141, it is necessary for the Court to decide what is the meaning and effect of that section. Now, the construction of sec. 141 and of sec. 647 (the corresponding section of the Code of 1882) has remained a vexed question, and been a fruitful source of litigation for more than forty years, during which period a wide diversity of opinion has been disclosed in this Court as to whether, and if so to what extent, the procedure in the Code relating to suits has been made applicable to execution proceedings. Having regard to the admitted divergence of opinion in the Court, as to the meaning and effect of sec. 141, I should have been disposed to refer the question in issue to the Full Bench for final determination. It is, I think, a matter both for surprise and regret that so many questions of practice and procedure have been allowed—in some instances for decades—to remain, and still are unsettled. Uncertainty as to procedure must needs militate against the due administration of justice. It is, of course, inevitable that differences of opinion should arise as to the substantive rights of a prospective litigant, but there should be no ground for doubt or perplexity as to the mode in which his rights are to be determined. It is of the utmost importance that the practice and procedure of the Courts should be well-defined and clearly understood, and that in the Mofussil Judges should not be compelled to waste their energy in endeavouring to ascertain the practice they are to follow from a number of apparently diverse decisions which can only be rendered consistent (if at all) by the exercise of the most subtle reasoning. Upon these grounds, and because I feel strongly that the rules and regulations relating to practice should be the handmaid and not the mistress of the law, I should have been inclined to refer the question in issue in this case to the Full Bench. My learned brother, however, takes a different view and as I have formed clear opinion as to what our decision should be I am content that we should decide this case without referring the question in issue to the Full Bench, because, in my opinion, the matter is concluded by the decision of the Judicial Committee in Thakur Prosad v. Fakirulla , and also because since 1917 the question has arisen in the High Court on six occasions, and in each instance the Court has determined the issue as we propose to decide it in the present case. In such circumstances these rulings, I think, may now be regarded, and should be followed, as a settled cursus curice. Bharat Chandra Nath v. Iasin Sarkar ; Civil He vision Cases Nos. 521 and 522 of 1923; Civil Rule No. 1313 of 1923; Civil Rule No. 1286 of 1923; and Narendra Nath Chatterji v. Rakhal Das Tarafdar . It will not be inopportune, however, to point out the source of the diversity of opinion which has arisen. In sec. 647 of the Code of 1882 it was enacted that “the procedure herein prescribed shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil Jurisdiction other than suits and appeals.” Divergent views having been expressed by the Courts as to whether sec. 647 extended the provisions of the Code relating to suits to execution proceedings [see, e.g, Bisica Sonan v. Binanda Chunder (10), Bunku Behari Gangopadhya v. Nil Madhab (11), Fakirullah v. Thakur Prosad (12) and Piradc v. Pirade (13), the legislature added to sec. 647 the following: “Explanation—This section does not apply to applications for the execution of decrees which are proceedings in suits” [Civil Procedure Code Amendment Act (VI of 1892)]. In 1894 the case of Thakur Prosad v. Fakirulla , which had been decided in the Allahabad High Court before the passing of Act VI of 1892, was reversed on appeal to the Judicial Committee [Thakur Prosad v. Fakirulla ], and in the course of his judgment Lord Hobhouse, who delivered the opinion of the Board, observed that—“It is not suggested that sec. 373 (now Or. 23, r. 1) would of its own force apply to execution proceedings. The suggestion is that it is applied by force of sec. 647. But the whole of Chap. 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 possible. Their Lordships think that the proceedings spoken of in sec. 647 include original matters in the nature of suits such as proceedings in probates, guardianships, and so forth, and do not include executions.” Later in his judgment his Lordship added that—“Their Lordships' attention has been called to the recent Act VI of 1892 which would appear to have been passed in order to avoid the disturbance of practice caused by the Allahabad rulings. That Act is framed so as to apply to the present appeal, and would have controlled their Lordships' opinion had it been the other way. But having regard to the controversies which Lave arisen and the difference of opinion between the various High Courts, their Lordships have thought it right to state their opinion that the Act of 1892 does nothing more than express the true meaning of the Civil Procedure Code.”
In 1908 the legislature enacted the Code of Civil Procedure (Act V of 1908), and sec. 141 of the Code runs as follows: “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 all Court of Civil Jurisdiction.”
There is no substantial difference between the terms of sec. 647 of the Code of 1882 in its original form and sec. 141 of the Code of 1908, and, in my opinion, the broad and general proposition may be laid down that none of the provisions of the Code are made applicable to execution proceedings by reason of the provisions of sec. 141. Proceedings in execution are not controlled by Or. 21 alone, for many other provisions in the Code are made applicable to execution proceeding's, but it should clearly be understood that such other provisions are not extended to proceedings in execution by reason of sec. 141. [Asim Mandal v. Raj Mohan Das (14), Hari Charan Ghose v. Manmatha Nath Sen (15), Cham Chandra Ghose v. Chandi Charan Roy (16), Balasubramania Chetti v. Swarnammal (17), Hajrat Akramannisa Begum v. Valiulnessa Begum, (18), Bhubaneswar Prosad Singh v. Tilkdhri Lal (19) and the cases cited supra]. The following decisions in so far as they are based upon, or support a view of, the law inconsistent with what is stated above to be the meaning and effect of sec. 141, in my opinion, must now be regarded as having been incorrectly decided; Krishna Chandra Pal v. Pratap Chandra Pal (20), Safdar Ali v. Kishun Lal (21), Deljan Nichha Bibi v. Hemanta Kumar Roy , Bhuban Behari Nag v. Dhirendra Nath Banerji (22) and Bipin Behari Saha v. Abdul Barik (23). Now, in the present case, the Court has been moved to set aside the order of the 14th December 1925 in the exercise of its revisional jurisdiction. If an appeal lies to the High Court from the order complained of the Court has no jurisdiction to entertain an application for revision of the order under sec. 115, and in any case the Court would be slow to exercise its power of revision if some other adequate remedy were available to the Petitioner. But an order of dismissal for default is not a decree [sec. 2(2)], and is not appealable under sec. 90, and no appeal lies from the order refusing to restore an application to set aside the sale [Charu Chandra Ghose v. Chandi Charan Roy Chaudhuri and Ghasiti, Bibi v. Abdul Samad (24)]. Unless, therefore, the order dismissing for default of appearance the application to set aside the sale is “an order under r. 92 of Or. 21 refusing to set aside a sale, a remedy by way of appeal is not open to the Petitioner (sec. 104). R. 92, however, relates to orders confirming the sales, and with all due respect for the opinion expressed by Richardson, J., in Kali Kanta v. Shyam Lal (25) and Bharat Chandra v. Iasin Sarkar (in which cases Or. 9, r. 9 and not Or. 9, r. 4 were in question), I am disposed to think that an order dismissing an application to set aside a sale merely on default of appearance of the parties cannot be regarded as in any way confirming the sale. No doubt, if the Court not only dismisses the application but orders that the sale be confirmed, such an order is within r. 92, and is appealable under Or. 43(1)(j). On the other hand, in dismissing the application for default when neither party appears on the case being called for hearing, the Court does not refuse to set aside the sale, but in the absence of the parties refuses to consider whether the sale should be set aside or not. Such an order, in my opinion, is not appealable under Or. 43(1)(j). Whether an appeal lies from an order or not in each case must depend upon the construction of the order. In my opinion, where an order is passed dismissing an application to set aside a sale merely on default of appearance by the parties and not on the merits, the applicant is not debarred from making a fresh application for the same purpose, if he prefers the application within the time allowed by the statute of limitation, and the application otherwise is duly made according to the requirements of the law.
There appears to be no provision in the Code which expressly disentitles the applicant from making a fresh application to set aside the sale in such circumstances. Such an application is not barred as res judicata [Delhi and London Bank v. Orchard (26)], and I can see no reason or equity in refusing to allow the applicant to prefer it. On the contrary, the rulings in Dhonkhal Singh v. Phakkar Singh (27), Thakur Prosad v. Fakirulla , Delhi and London Bank v. Orchard and Hajrat Akramannisa Begum v. Valiulnessa Begum appear to me to support the view that such an application may be preferred. Moreover, an examination of Or. 9, rr. 4 and 9, leads me to the same conclusion, for whereas under r. 4 when neither party appears a fresh suit may be brought under r. 9 when a suit has been dismissed under r. 8 on the non-appearance of the Plaintiff alone, the Plaintiff is precluded from bringing a fresh suit in respect of the same cause of action, and is restricted to an application for an order to set aside the dismissal of the suit. The practice in England is to the same effect; see Or. 36, Armour v. Batu (28) and per Walton, J., in Dowse v. Cecil (29). Thus a distinction is drawn between suits in which neither party appears, and suits in which the Defendant appears but the Plaintiff fails to appear when the case is called for hearing. In my opinion, a like distinction should be drawn in cases where an application to set aside a sale in execution proceedings is dismissed for default. Now, in Kali Kanta v. Shyam Lal and Bharat Chandra v. Iasin Sarkar , to which I have adverted, when the application to set aside the sale was called for hearing, the Opposite Party appeared but the applicant did not appear and it may be that in such circumstances if the application is dismissed on default of appearance by the applicant, the only remedy open to the applicant is to apply to the Court to reverse the order in the exercise of its inherent jurisdiction or that conferred upon it under sec. 151 of the Code. [Debi Baksh Singh v. Habib Shah , Lalta Prosad v. Ram Karan , Bilasirai v. Cursondas and Bharat Chandra Nath v. Iasin Sarkar ]. But I am of opinion that where neither party appears and an order is passed dismissing the application merely for default of appearance the applicant is entitled subject to the law of limitation duly to prefer a fresh application to set aside the sale. In these circumstances, in my opinion, the Court ought not to exercise its power of revision in favour of the Petitioner, and for the reasons which I have stated I agree that these Rules should be discharged.
N.G