SIBANI RANI DUTTA Vs. BALAI CHANDRA DUTTA

JUDGEMENT

(1.) CHATTERJEE, J. has referred this application under section 115 of the Code of Civil Procedure to the Division Bench on the ground that his Lordship found very great difficulty in reconciling the decision of Harries, C. J. , sitting singly, in (1) Bibhabati Devi v. Hrishikesh, (1947) 83 C. L. J. 162, with the decision of the Supreme Court in (2) Keshardeo v. Radhakishen, (1953) S. C. R. 136. In the case before us, the decree-holder Opposite Parties put their decree for arrears of rent against the judgment-debtor Opposite Parties into execution, and at the sale held in that execution case (R. Ex. No. 419 of 1954), the petitioner, a third party, auction-purchased the holding on 11. 11. 54. An application for setting aside the sale, under section 174 (3 ). of the Bengal Tenancy Act, was brought by the judgment-debtor Opposite Party No. 1, in December, 1957. This application was allowed ex parte by the learned Munsif, on account of the failure of the petitioner to appear on the date of hearing (24. 1. 59 ).

(2.) THEREUPON, the petitioner filed an application for setting aside the said ex parte order by which the learned Munsif had allowed the application under section 174 (3) of the Bengal Tenancy Act and set aside the sale, on the ground that her husband, who used to look after her case, was unable to appear on the date of hearing owing to illness. This petition was labelled under various provisions of the Code, such as Order 9, rule 13 ; Order 47, rule 1 ; section 151. The learned Munsif dismissed this application as riot maintainable. As to Order 9, rule 13 and Order 47, rule 1, he held that those provisions were not applicable since the conditions of their applicability were not present in the petitioner's case. As regards section 151, which was patently wide in its language, the learned Munsif held that since the order allowing the application under section 174 (3) of the Bengal Tenancy Act was appealable under sub-section (5)of that section, section 151 of the Civil Procedure Code could not be invoked to set aside that order as appeal was the only remedy. In coming to this conclusion, the learned Munsif followed the decision of Harries, C. J. in (1) 83 C. L. J. 162, referred to at the outset. The petitioner has, thereupon, moved this Court under section 115 of the Code on the ground that the learned Munsif has acted illegally and with material irregularity in the exercise of his jurisdiction in dismissing the petitioner's application under section 151 on the ground that it was not maintainable in law. Learned Advocate for the petitioner, has made a two-fold argument in support of this contention on behalf of the petitioner. A. It has firstly been urged that the inherent power under sec. 151 should not be refused even if there is a provision for appeal against the order complained of. Section 151 having been provided for to ensure the inherent power of the court to do substantial justice upon the assumption that the Code is not exhaustive [ (3) Hukum Chand v. Kamalanand, (1906) 33 Cal. 927] and it is not possible for a Code of Procedure to anticipate and to "regulate for all time to come so as to make express provision against all inconveniences, which are infinite in number and so that their dispositions shall express all the cases that may probably happen", as observed by Peacock, C. J. in (4) Hurro v. Shoorodhonee, (1868) 9 W. R. 402 (406) F. B. , it is natural that the highest courts of the land would be anxious to preserve this great charter to secure real justice in cases where the dictates of their judicial conscience demand that such justice must be done even though the written Code, not being exhaustive, has failed to provide for a situation as that in a particular case before the Court. But even though no court can or should catalogue the circumstances in which section 151 may be properly applied, and differences in shades of opinion are bound to occur so long as section 151 remains on the statute book, several broad propositions may be taken to have been settled by a consensus of judicial opinion: i. No Court can have an inherent power to do what is expressly prohibited by the Code [cf. (5) Rameswar v. Lala, A. I. R. 1925 Pat. 36: (6) Narsingdas v. Mangal, (1883) 5 All. 163 (172) ; (7) Sarat v. Biseswar, (1926) 31 C. W. N. 576]. II. But in matters which are neither prohibited nor expressly provided for, the Court has an inherent power to adopt such procedure as is necessary for securing the ends of justice or to prevent abuse of the process of the Court, having regard to the particular facts and circumstances of a case (6) [narsingdas v. Mangal, ibid. ; (3) Hukumchand v. Kamalanand, ibid. ; (8) Nandkishore v. Ramgolam, (1913) 40 Cal. 955 (959) ; (7) Sarat v. Bisweswar, ibid. ]. III. Where the Code itself makes an express provision for a particular remedy, the party, who does not avail of such remedy, cannot, as a rule, be allowed to resort to section 151, for, to do so would be to defeat the object and utility of the Code itself. This principle has been laid down by the Allahabad High Court in the Base of (9) Joshi v. Jhinguria (1923) 46 All. 144. Similar view has been taken by the Nagpur High Court in (10) Sheolal v. Jugal Kishore, I. L. R. (1940) Nag. 538 (548) ; (11) Kishna Kumar v. Jawan Singh, A. I. R. 1947 Nag. 236. In this latter case it was held that section 151 could not be resorted to for setting aside an order of dismissal of a suit under Order 11, rule 21, of the Code, inasmuch as it was appealable under Order 43, rule l (f ). As to the Patna High Court, we may refer to (12) Ajadhya v. Phul Kuer, A. I. R. 1922 Pat. 479 and (13) Baikunth v. Siddique, A. I. R. 1958 Pat. 27, to the same effect. It is needless to refer to cases of other High Courts supporting this view. In our own Court, this principle was enunciated in the early case of (3) Hukum Chand v. Kamalanand, (1906) 33 Cal. 927. In that case, Woodroffe, J. observed-"the essence of a Code no doubt is to be exhaustive on the matters in respect of which it declares the law.

(3.) ON any point specifically dealt with by it the law must be ascertained by interpretation of the language used by the Legislature. " in (7) Sarat v. Bisweswar, (1926) 31 C. W. N. 576, where section 151 was applied to restore an application under Order 9, rule 9, which itself had been dismissed for default, the ratio was that there was no express provision in the Code to provide the procedure for setting aside an order of dismissal for default of a proceeding other than a suit or original proceeding of that nature, to which alone section 141 was attracted. In this case, Mukherji, J. observed-"-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 that real and substantial justice for the administration of which it exists, the provision of section 151 may and should be resorted to. "