GOUR NAG BHUSAN Vs. ANANTA SENDH

JUDGEMENT

(1.) THESE applications for revision under Section 115 of the Code of Civil Procedure are directed against an order of the 2nd Munsif, Cuttack, restoring Misc. Cases nos, 210 and 239 of 1954 which were dismissed for non-prosecution. The learned munsif heard these petitions under the provisions of Order 9, Rule 9 read with section 151 of the Civil Procedure Code.

(2.) THE relevant facts, so far as necessary for the present purpose, are shortly these: The petitioner in the present revision petitions was an auction-purchaser of properties in Execution Case No. 286 of 1952 in the Court of the Munsif, Second court, Cuttack. The opposite parties Nos. 1, 2 and 3 (hereinafter referred to as lis pendens purchasers) filed objections under Order 21, Rule 58 of the Code of Civil procedure on the ground that they were purchasers during the pendency of the original suit and the said objections were dismissed. Thereafter, the lis pendens purchasers made an application being Misc. Case No. 239 of 1954, under Order 21, Rule 100 and Section 151 of the Code of Civil Procedure, praying to be put in possession of the disputed properties and they also made an application, being misc. Case No-210 of 1954, under Section 151 of the Code of Civil Procedure requesting the Court not to allow the judgment-debtors to withdraw the balance of the sale proceeds. On 3-11-1956, these two applications, being Misc. Case No. 239 of 1954, and misc. Case No. 210 of 1954 were dismissed for default after the petition for adjournment by them was rejected. Thereupon, the lis pendens purchasers made ap-plications before the learned Munsif, being Misc. Cases Nos. 326 and 327 of 1956 under Order 9, Rule 9 read with Section 151 of the Civil Procedure Code, for restoration of the said two cases which were dismissed for default, on grounds mentioned in their petitions. By an order dated 21-8-1957, both the said Misc. Cases Nos. 210 and 239 of 1956 were restored by the learned Munsif. It is against this last order of the learned Munsif restoring the said Miscellaneous cases that the present revision petitions were filed.

(3.) THE main questions for consideration in this matter are whether Order 9, Rule 9 of the Civil Procedure Code applies to proceedings instituted under Order 21, Rule 100, C. P. C. and whether the Court has inherent power under Section 151 of the civil Procedure Code to set aside the order of dismissal for default, on sufficient cause being shown. The learned Counsel for the petitioner before me argued that in the present case the opposite parties had their alternative remedy by way of a suit under Order 21, Rule 103. He contended that the Court has no inherent power to set aside its own order and interfere in any case in which the Court thinks a failure of justice has occurred, when the aggrieved party has another remedy by which it can be set aside, even though the remedy is not as summary or as cheap. In support of this view the learned Counsel for the petitioner cited before me a Full bench decision of the Madras High Court, Allagasundaram Pillai v. Pichuvier, AIR 1929 Mad 757 (A ). In that case, their Lordships, while appreciating the position that there is a conflict of authorities on the question, came to conclusion and held that prima facie the legislature intended that proceedings under Order 21, Rule 97 or 100 should be regarded as included under the word 'execution' and that proceedings under Rules 97 and 100 follow as sequel on the execution of the decree (using the word 'execution' in its stricter sense) and on the Court-sale and further that the legislature has enacted that such proceedings shall be regarded in law as part of the execution proceedings. They also held that it is obvious that S, 141 of the Civil procedure Code does not apply to such proceedings under Order 21 as are not also proceedings under Section 47 and, therefore, Order 9 does not apply to such proceedings under Order 21, Rule 97 or 100 as do not also fall within Section 47.