RAJ KUMAR Vs. VED ROOP NARAIN

JUDGEMENT

(1.) This is a decree-holder's application in revision against an order of the learned Munsif of Moradabad allowing an application for the restoration of an objection under Order 21, Rule 97, Civil P. C. The objection was dismissed on the date of hearing for want of prosecution. The objector made an application for restoration of his objection, under Sections 141, 151 and Order 9. Rule 9, Civil P. C., alleging that on the date of hearing he was sitting in the court compound in front of the court room but as he was hard of hearing, he did not hear his case being called. The decree-holder objected to the application being allowed on the ground that none of the sections under which the application was made applied. He did not challenge the fact that the objector was hard of hearing. The learned Munsif held that although Order 9, Rule 9, Civil P. C. did not apply, he could restore an objection under his inherent powers. He, therefore, restored the objection on payment of Rs. 8 as costs.

(2.) In this revision application the learned counsel has urged that the Court below had no jurisdiction to restore the objection under its inherent powers. In support of his contention he has relied upon Alagasundaram Pillai v. Pichuvier, A. I. R. (16) 1929 Mad. 757 : (52 Mad. 899 F. B.); Sukhomoy Biswas v. Asia Khatun, A. I. R. (21) 1931 Cal. 653 : (152 I. C. 24) and Mt. Rahmat Bibi v. Chandu Lal, A. I. R. (26) 1939 ALL. 497 : (1939 A. L. J. 398). In Alagasundaram Pillai v. Pichuvier, A. I. R. (16) 1929 Mad. 757 : (52 Mad. 899 F. B.), it was held that proceedings under Order 21, Rule 97 or 100, Civil P. C. were part of execution proceedings and as such Order 9, read with Section 141, Civil P. C., did not apply. It was further held that the Court had no inherent power under Section 151, Civil P.C., to set aside an order passed under Order 21, Rule 97, Civil P. C., as the applicant had another remedy by which he could have the order set aside, namely, the institution of a regular suit under the provisions of Order 21, Rule 103, Civil P. C. In Sukhomoy Biswas v. Asia Khatun, A. I. R. (21) 1934 Cal. 653: (152 I. C. 24), it was held that the inherent power of the Court under Section 151, Civil P. C., could be invoked only when there was no remedy open to the aggrieved party and consequently when an objection under Section 21, Rule 100, Civil P. C., was dismissed, it could not be restored. In Mt. Rahmat Bibi v. Chandu Lal, A. I. R. (26) 1939 ALL. 497 : (1939 A. L. J. 898), a Division Bench of this Court expressed the opinion:

(3.) In Kallan v. Nanhe, A. I. R. (17) 1930 ALL. 701: (132 I. C. 807), Sen J. held that the Court had beyond all doubt an inherent jurisdiction to get aside its former order striking out the defence and passing an ex parte decree against the defendant, and that the mere fact that the defendant had a right to appeal under Order 53, Rule 1, Clause (f), Civil P. C., from the order striking off his defence did not preclude the Court below from exercising its inherent jurisdiction in setting aside an exparte decree which had been wrongly or illegally passed.