ASGHAR ALI KHAN Vs. BHARAT INDU

JUDGEMENT

(1.) THIS is an appeal by the decree-holder in an execution matter. In the form in which it comes before us, in consequence of the decision of the court below, it raises a simple question of law. On the 28 of May, 1921, an application for execution of a certain decree, which had been made on the 7 of April, 1920, was dismissed by the execution court on the ground that the decree-holder had failed to prosecute it with due diligence. On the 1 of June, 1921, the decree-holder presented to the court below an application, not described as falling under the provisions of any specified section or rule of the Civil P. C., but offering an explanation of the alleged default of prosecution and asking the court to restore the application of the 7 of April, 1920, to its file and to proceed with its disposal according to law. The court below has rejected his application on the ground that the provisions of Order IX of the Civil P. C. have no application to execution proceedings and that the decree holder's remedy, if any, was to make a fresh application for execution of his decree. The authority quoted for this view of the law is the decision of the Privy Council in the case of Thakur Prasad V/s. Fakir-ullah (1894) I.L.R. 17 All. 106. On the face of it this case is decisive against the decree-holder. He had no right in law to apply for the restoration of his application of the 7 of April, 1920, and, what is more, nothing in Order XLIII, Rule 1, Clause (c) of the Civil P. C. would give him any right of appeal against the decision of the court below rejecting his application. It has been contended before us that the decision of the Privy Council above referred to ceases to govern the case, by reason of the provisions of Section 141 of the present Civil P. C., Act No. V of 1908, in which an explanation, which had been added by the amending Act No. VI of 1892 to Section 647 of the former Civil P. C., was omitted. The history of this matter is somewhat curious, but we think there can be no doubt that the correct view is that taken by the Chief Justice of the Calcutta High Court in the case of Hari Charan Ghose V/s. Manmatha Nath Sen (1913) I.L.R. 41 Calc. 1 (4). THIS ruling has since been followed by the Patna High Court in the case of Babui Ritu Kuer v. Alakhdeo Narain Singh (1918) 4 Patna L.J. 330.

(2.) WE think the decision of the court below was correct and, moreover, that no appeal lies against it. WE dismiss this appeal with costs.