BUDLA ESWARIAH Vs. KASALA SAMBAMMA

JUDGEMENT

(1.) The short point that falls for determination in this revision peti" tion is, whether the Fourth Judge, City Civil Court, Hyderabad, was right in holding that he had no powers either under Order 9 or under section 151, Civil Procedure Code, to entertain an application for restoration of a petition made under Order 21, rule 90, Civil Procedure Code, which was dismissed for default.

(2.) The petitioner is a minor who was represented by his next friend in the execution proceedings pending before the Fourth Judge, City Civil Court. He made his application under Order 21, rule 89, Civil Procedure Code, by depositing the necessary amounts. He also applied under Order 31, rule 90, Civil Procedure Code, for setting aside the sale on grounds of some material irregularities in publishing and conducting the sale. The latter petition came up for consideration on 15th November, 1954. But that day the minor was found to be unrepresented. The learned Judge therefore dismissed the petition for default and, at the same time, ordered confirmation of sale. The guardian then came with an application on 22nd November, 1954, through his advocate for restoration of the petition on the ground that he entirely depended upon the pleader and that the pleader suddenly fell ill and therefore could not attend the Court on the date fixed nor could he send his application for adjournment in time. He also submitted a medical certificate in support of this plea. The learned Judge held that such a petition was not tenable in law and the Court had no jurisdiction to restore such petition in exercise of its inherent powers.

(3.) Several rulings have been cited on behalf of the parties. It is not disputed that the order impugned is an order made in execution proceedings. There was a conflict of opinion among the various High Courts as to the applicability of Order 9, Civil Procedure Code, to execution proceedings. But this has been resolved by the Privy Council in Thakur Prasad v. Fakirullah, (1894) 5 M.L.J. 3 I.L.R. 17 All. 106: L.R. 22 I.A. 44(P.C.).