SITA RAM Vs. BASHI RAM GOBIND SINGH

JUDGEMENT

(1.) THIS entire matter falls for determination by this Full Bench in pursuance of an order made by Bishan Narain and I. D. Dua, JJ. on the 5th of April, 1960. The sole question that requires determination is whether the provisions of Order IX, R. 9 of the Code of Civil Procedure--hereinafter referred to as the Code--apply to the dismissal in default of an application under section 10 of the Displaced Persons (Debts Adjustment) Act (No. 7 of 1951)--hereinafter referred to as the Act.

(2.) THE facts out of which this matter arises may now be briefly stated. The parties to this litigation are displaced persons from West Pakistan. Brij Lal and his two brothers had mortgaged their house in Pakistan to one Bashi Ram for a sum of rs. 10,000/ -. This mortgage was effected on the 13th of September, 1946. In the year 1947, partition of India came about and the mortgagors and the mortgagee migrated to India. A variety of legislation was enacted in the wake of partition and the present Act is one of them. The Act, as will be clear from its preamble, was enacted to make certain provisions for the adjustment and settlement of debts due to them and for matters connected therewith or incidental thereto. This Act came into force on the 10th of December, 1951, in the State of Punjab. Bashi Ram mortgagee made an application under section 10 of the Act against all the mortgagors to get a first charge created on the compensation, if any, payable to the mortgagors in respect of the mortgaged property. This application was dismissed in default in the presence of mortgagor's counsel. However, no steps were taken by the mortgagee to get the order of dismissal set aside, either under the Code or by recourse to the inherent powers of the tribunal. Instead a fresh application under section 10 of the Act was preferred and he obtained a decree against the mortgagors other than Brji Lal. Therefore, so fat as Brji Lal is concerned, the proceedings in the second application have no effect. However, on the 18th of May, 1953, Bashi Ram made a fresh application under section 10 of the Act against the minor sons of Brji Lal Brji Lal having died in the meantime. This application was contested on the short ground that the second application was not maintainable after the first one had been dismissed in default. Other objections were also raised, but we are not now concerned with the same. The tribunal rejected this and the other objections of the sons of Brji Lal and passed a decree against them. Their appeal was dismissed by Gurnam Singh, J. However, an appeal under Clause 10 of the Letters Patent by the sons was heard ex parte and was allowed by Bhandari, C. J. , and Falshaw, J. on the 25th of september, 1959. Bashi Ram applied for setting aside this ex parte decision and the same was set aside by Dulat and Dua, JJ. , on the 24th of November, 1959. Thereafter, this Letters Patent appeal was set down for hearing before Bishan narian and Dua, JJ. , and, as already pointed out, has been referred for decision by a large Bench.

(3.) IT is not disputed that in case the provision of O. IX, R. 9 of the Code apply to the case of dismissal in default of an application under section 10 of the Act the appeal must be allowed. The contention of the learned counsel for the appellants is that by reason of section 25 of the Act, the Code applies to all proceedings under the Act and, therefore, the dismissal in default would be covered by the provisions of the Code and the consequences envisaged in that provision would come into play. On the other hand, it is contended by the learned counsel for the mortgagee, bashi Ram, that section 3 read with section 44 of the Act excludes the applicability of O. IX, R. 9 of the Code, that the right conferred on a party under O. IX R. 9 of the Code is a substantive right and section 25 of the Act does not make the substantive provisions of the Code applicable to proceedings under the Act but only the procedural provision of the Code are made applicable; and that the provisions of O. IX, R. 9 of the Code apply only to proceedings in a Court of civil jurisdiction and the tribunal under the Act is not a Court of civil jurisdiction; therefore the provisions of O. IX, R. 9 of the Code have no application to a case of dismissal in default of an application under section 10 of the Act.