KHEM CHAND Vs. NIRANJANLAL

JUDGEMENT

(1.) This is a revision application under Section 115, Civil P. C. by Khemchand and others against Niranjanlal and others which has been directed against an order of the District Judge, Alwar, of 19-4-1949. The facts of the case are that Khemchand and others held a decree against Swami Lakshminarain and others of the date of 2-8-1928 for Rs. 17,400/- with future interest at the rate of five annas per cent, per month payable in instalments. The last execution application was filed by the decree-holders on 9-1-1942 for the recovery of Rs. 2996/- and it was prayed that this amount be collected by transfer of the proprietary interests of the judgment- debtors in their lands. 25-2-1948 was fixed for consideration of certain objections filed by the judgment-debtors and for receiving their evidence. On that date the case could not be taken up as a holiday was declared by the Government. The District Judge took up the case on the next date i.e., 2S-2-1948. The judgment- debtors were present but the decree-holders failed to appear. The District Judge, therefore, dismissed the execution application stating that it should be deemed to have been dismissed for non-satisfaction of the decree. An application was filed by the decree-'holders on the same day in which it was stated that they had been waiting outside the Court throughout the day and that their case had not been called out. They prayed for giving them information as to what was done in their case. The District Judge, after taking a report from his office, informed the decree- holders that their case had been dismissed and non-satisfaction had been entered on the decree. They then filed an application on 19-3-1948 for setting aside the order of dismissal. After a long enquiry the learned District Judge dismissed the application of the decree-holders on 19-4-1949 against which order the decree- holders have come here.

(2.) The learned District Judge has remarked in his order of 19-4-1949 that the dismissal order should be treated to have been made under Order 21 Rule 57, Civil P. C. as there was no other procedure in Order 21 relating to dismissal of execution applications for default. There being no rules of procedure in the Civil Procedure Code for restoration of the dismissal of applications under Order 21, Rule 57. Civil P, C. the learned District Judge felt that he could not restore the execution application in the present case.

(3.) It has been contended on behalf of the petitioner that in exercise of its inherent powers a Court executing a decree could dismiss an execution application for default and at the same time it could restore such an application on its original number. In support of this argument cases of --- 'Harisingh v. Bulaqimal & Sons', AIR 1930 Lah 20 (A); -- 'Abdul Karim v. Ramsingh', AIR 1924 Lah 350 (B) and -' Attarsingh v. Bur Singh', AIR 1926 Lah 534 (2) (C), have been cited. In --' Harisingh v. Bulaqimal & Sons (A)', Zafar AH J. has observed that: