SATYANANDA SAHU Vs. KESHAB SAHU AND ORS.

JUDGEMENT

(1.) ONE Dwarika had three sons - Padman, Kairu and Rama. Plaintiff is the son of Kairu. Defendants 1 to 6 represent the branch of Pad man, and Defendant No. 7 is the widow of Rama. In T.S. No. 39 of 1963 pending in the Court: of the Subordinate Judge of Baragarh Defendant No. 1 was appointed receiver. On l0 -4 -1974 the Subordinate Judge accepted the commissioner's report and directed Defendant No. 1 to pay the Plaintiff and Defendant No. 7 their legitimate share by 30 -4 -1974. On 1 -51974 the Subordinate Judge directed issue of distress warrant against Defendant No. 1 for realisation of the dues. On 4 -7 -1974 the defence of Defendant No. 1 was struck off as he did not comply with the order dated 10 -4 -1974 in making the payments. Thereafter the case was taken up for trial. Defendant No. 1 was not permitted to take any part in the subsequent proceedings. The case was closed on 17 -7 -1974 and was fixed to 31 -7 -1974 for judgment. Against the order dated 4 -7 -1974 Civil Revision No. 275 of 1974 has been filed while against the order dated 17 -7 -1974 Civil Revision No. 274 of 1974 has been filed. Both the civil revisions have been analogously heard.

(2.) THE short question for consideration is whether the defence would have been struck off on account of non -payment of the dues as directed. Mr. Patnaik appearing for the Plaintiff urged that under Section 151, Code of Civil Procedure the Subordinate Judge was within his jurisdiction in striking off the defence as the dues were not paid in time. The scope and ambit of Section 151, Code of Civil Procedure is no longer res integra. By a series of decisions of the Supreme Court the position has been made clear that Section 151, Code of Civil Procedure should not be invoked where there is an express provision of the Code to deal with a particular matter, but it can be used in supplementing the provisions of the Code. Under Order 40, Rule 4, Code of Civil Procedure there is a provision as to what action would be taken against the receiver if he disobeys the order of the Court. The impugned order of the learned Subordinate Judge does not show that there are no materials for taking action under Order 40, Rule 4, Code of Civil Procedure Code. On the contrary the Subordinate Judge issued a distress warrant for recovery of the dues. There was therefore no justification for taking drastic action in exercise of the powers under Section 151, Code of Civil Procedure though the Court may use such powers in extreme cases. Exercise of the power for striking off the defence is supplementary to the powers conferred under Order 40, Rule 4, Code of Civil Procedure Code. Before the power is exercised, the Court must act justly and cautiously and must indicate in his order the circumstances in which he did not invoke the powers expressly prescribed under Order 40, Rule 4, Code of Civil Procedure Code. I am satisfied that the learned Subordinate Judge exercised his jurisdiction with material irregularity.

(3.) THE suit has been very old and is being protracted from the year 1963. Defendant No. 1 has already filed his written statement. The learned Subordinate Judge will decide the suit on merits within three months from today with intimation to this Court. It is open to him to take action under Order 40, Rule 4, Code of Civil Procedure for recovery of the dues from the receiver. The suit will proceed anew. The witnesses examined by the Plaintiff would be cross -examined by the Defendants. It will be open to the Plaintiff to give further evidence if he so chooses.