ORISSA STATE FINANCIAL Vs. AZAD AUTO SERVICING GARAGE

JUDGEMENT

(1.) THE Orissa State Financial Corporation is the petitioner. It had filed an application Under Section 31 of the State Financial Corporations Act, 1951 (Act No. 63 of 1951) (hereinafter referred to as 'the Act') before the District Judge, Phulbani for enforcement of the liability of opp. parties 1, 2 and 3 for an amount of Rs. 11,716. 60 with interest. The application filed Under Section 31 of the Act was registered as Misc. Case No. 4 of 1989. As it is disclosed from the order sheet, office note was that the matter should have been registered as money suit as the prayer is for money decree. The same objection was over -ruled. The order sheet disclosed that the matter was adjourned several times as the Presiding Officer was either not available or he had no time. On 15 -3 -1991 the order sheet records that the Court directed to amend the prayer portion of the petition to bring it within the ambit of Section 31 of the Act. The matter was taken up on 20 -6 -1991 for consideration. Though the counsel for the petitioner was present, the Misc. Case was dismissed for default as the petitioner had not taken any step for amendment of the prayer portion. The impugned order dated 20 -6 -1991 reads as follows :

(2.) SUCH a concept for dismissing for default is not envisaged either in the CPC or in the State Financial Corporations Act, It is no more res integra that an application Under Section 31 of the Act is not a suit for recovery of money but in the nature of execution proceeding. Once an appli - cation is fiied Under Section 31 of the Act the learned District Judge is to proceed following the procedure laid down Under Section 32 of the Act and Section 32(6) of the Act mandates the District Judge to proceed to investigate the claims in accordance with the provisions contained in CPC. In that view of the matter, when the Advocate for the claimant was preset in Court and the matter was not posted for hearing, the District Judge did not have any jurisdiction to dismissal the matter for default. Therefore, the order of dismissal or default is not sustainable. Order dated 20 -6 -1991 passed in Misc. Case No. 4 of 1989 is set aside and the District Judge is directed to proceed from that stage in accordance with law.