BHAKTISARA RAMANUJ DAS Vs. BOURI BANDHU PANDA

JUDGEMENT

(1.) THIS is a revision against the order of the Subordinate Judge of Puri, passed in exercise of his inherent powers, under Section 151, C. P. C. restoring an application under Order 21, Rule 2, of the Civil Procedure Code, which had been previously dismissed for default.

(2.) THE opposite party had obtained a decree for declaration of title and recovery of possession of house property worth Rs. 5000/- and also for recovery of damages amounting to Rs. 1000/- against two defendants, the present petitioner being defendant No. 2 (judgment-debtor No. 2 ). The decree was put into execution, in due course, and then defendant No. 2 filed a petition on 124-1962 purporting to be one under Order 21, Rule 2 of the Civil Procedure Code alleging that the decree-holder had received Rs. 5000/- from him, (undertaking to close the execution case) and requesting the Court to enter full satisfaction of the decree. The learned Subordinate Judge thereafter started a Misc. Case. (Miscellaneous case No. 70 of 1962) and, on 21-7-1962 when the present petitioner took no steps and did not appear before the Court he dismissed that case for non-prosecution. His order is thus tantamount to one of dismissal for default. Defendant No. 2 then applied under Section 151, C. P. C. for restoration of the miscellaneous case, and the learned lower Court after examining witnesses on his behalf to show that there was sufficient cause for his non-appearance, directed the restoration of Miscellaneous Case No. 70 of 1962, observing that in exercising his inherent powers under Section 151, C. P. C. the application could be restored.

(3.) MR. S. K. Ray appearing for defendant No. 2 urged that the Court had no jurisdiction to exercise its inherent powers in the circumstances of this case, because if the order of the Subordinate Judge dated 21-7-1962 dismissing the case for non-prosecution be construed as a decision or) merits, an aggrieved party had a right of appeal as it would amount to an order under Section 47, C. P. C. Alternatively if it be held that Section 47, C. P. C. will not be applicable it would be open to defendant No. 2 to file an independent suit to establish that there was a compromise between the decree-holder and the judgment-debtor, and ask for consequential reliefs. Hence, according to Mr. Ray, in any view of the case, the petitioner (defendant No. 2) had an alternative remedy and the Court should not have exercised its inherent powers under Section 151, C. P. C.