KALIAKKAL Vs. PALANI KOUNDAN

JUDGEMENT

(1.) The only question in this revision petition is whether Order 9, Rule 13 applies to execution proceedings. The District Munsif of Namakkal passed an ex parte order on 26th October, 1922, directing delivery of property free from obstruction. Defendants 5 and 6 applied on 9th November, 1922, to set aside the ex parte order. The District Munsif has set aside the ex parte order and passed a fresh order. The auction purchaser who is also the decree-holder has preferred this Civil Revision Petition. The question for decision is, was the order of the District Munsif setting aside his previous ex parte order passed without jurisdiction

(2.) The answer to the question depends upon the wider question whether Order 9 applies to execution proceedings. There are several cases on the point which are not all reconcilable. In Tirthaswami v. Annappayya (1894) I.L.R. 18M. 131 Muthuswami Aiyar, J., held that Chapters 7 and 13 of the old Code did not apply to execution proceedings. Me rested his conclusion upon the Explanation to Section 647 of the Code of 1882. By Act VI, Section 4 of 1892 an Explanation was added to Section 647. This Explanation was enacted on account of the view held by the High Courts of Allahabad and Bombay that Section 647 corresponding to Section 141 of the present Code applied to execution proceedings. The Explanation is in these terms: " This section does not apply to applications for the execution of decrees which are proceedings in suits." The Privy Council held in Thakur Prasad v. Fakir-ullah (1894) I.L.R. 17 All 106 : 5 M.L.J. 3 (P C) that independently of the Explanation, Section 647 did 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. Muthuswami Aiyar, J. held in Tirthaswami V. Annappaya (1894) I.L.R. 18 Mad 131 at 133 that the dismissal of an execution petition did not bar a fresh application for execution. In Balasubramania Chetti v. Swarnammal (1913) I.L.R. 38 Mad 199 : 25 M.L.J. 367 Benson and Sundara Aiyar, JJ. held that Order 2, Rule 2 did not apply to execution proceedings. They observe at page 201: " It could not have been the intention of the Legislature to apply to execution proceedings provisions laid down with regard to suits only. The procedure to be followed in appeals and execution applications is specifically laid down in the Civil Procedure Code. Section 141 is intended to apply to other proceedings in Civil Courts, such as probate, etc." Mr. Justice Ayling and Mr. Justice Seshagiri Aiyar followed this decision in Somasundaram v. Chokkalingam (1916) I.L.R. 40 Mad 780. In Kajuluri Swami v. Sooryanarayana Razu (1924) 47 M.L.J. 269 Mr. Justice Jackson held that Order 9, Rule 9 did not apply to orders passed in execution proceedings.

(3.) There are several cases which support the contention that Order 9 is applicable to execution proceedings. In Subbiah Naicker v. Ramanathan Chettiar (1914) I.L.R. 37 Mad 462 : 26 M.L.J. 189 , Ayling and Sadasiva Aiyar, JJ. were of opinion that Order 9, Rule 13 applied to execution proceedings. The point did not directly arise in that case, but the learned Judges held " Orders in execution which come under Section 47, Civil Procedure Code, are decrees as defined in Section 2 of the Code and hence ex parte orders passed in execution are ex parte decrees, and Order 9, Rule 13 provides generally for the setting aside of ex parte decrees and not only for the setting aside of those classes of ex parte decrees which are not also orders passed under Section 47 in execution proceedings." In Chidambaram Chetti v. Theivanai Ammal (1923) I.L.R. 46M. 768; 45 M.L.J. 346 (F B) the point was not decided, though Oldfield, J. in his referring order refers to the conflicting authorities on the point. The learned Chief Justice observed at page 780: " I desire to say that our decision in this case must be taken to be confined to the particular facts of this case, that is to say, that where you have nothing more than the non-attendance at the hearing of an application to settle the terms of a sale proclamation, the respondent cannot be taken to be estopped by reason of that non-attendance on the principle of res judicata from thereafter denying the liability of the property to execution." The decision in Kali Shettathi v. Shama Rao (1916) 5 L.W. 124 relied upon by Mr. Veeraraghava Aiyar does not help him.For,in the former, the point was not decided and in the latter Oldfield and Sadasiva Aiyar, JJ. held Order 9 of the Civil Procedure Code did not apply to execution proceedings.