SHEIKH MUHAMMAD HANIF Vs. SHEIKH ALI RAZA

JUDGEMENT

(1.) This case has been referred to a Full Bench because it raises a sub-stantial question of law requiring an authoritative pronouncement.

(2.) In 1928, a decree for a fairly large sum of money was passed in favour of the respondent, Ali Raza, against Muhammad Hanif and others, judgment-debtors, by the Subordinate Judge of Cawnpore. This decree was later on transferred to the Allahabad Court for execution. An application for execution was made at Allahabad in January, 1929 to which the judgment-debtors in September, 1929, objected, pleading that the decree had been adjusted out of court under a private arrangement More than one date had to be fixed for the hearing of the application. On the last date, namely, May 31, 1930, the decree-holder was absent and his. Pleader made a statement that he has no instructions to go on with the case. The court heard the objection and allowed it ex parte. It appears that the execution case was then struck off and a certificate was sent to the Cawnpore Court stating that the decree had been fully satisfied and that the case had been disposed of. This certificate was not received at Cawnpore till June 28, 1930. On June 25, 1930, the decree-holder made an application before the Court of Allahabad for the, setting aside of the exparte order, on the ground that he had been prevented by sufficient cause from not appearing on the date of hearing. The application professed to have been made under Section 141, Section 151 and Order XLVII, rule 1, Civil Procedure Code. After issuing notice and hearing objection of the judgment-debtors, the court entertained the application and having come to the conclusion that sufficient cause had been shown, set aside the previous ex parte. order allowing the objection and dismissing the execution application, and the case, has, therefore, been re-opened and is still pending.

(3.) The judgment-debtors have come up in revision to this Court and contend that the Allahabad Court after having sent the certificate of satisfaction to the Cawnpore Court, had ceased to have any jurisdiction over the case, and, therefore, the order passed by it setting aside its previous ex parte order was ultra vires. It is further urged that the order setting aside the previous order was not a proper order on its merits.