MOHAMMAD HANIF Vs. ALI RAZA

JUDGEMENT

(1.) This case has been referred to a Full Bench because it raises a substantial question of law requiring an authoritative pronouncement. In 1928, a decree for a fairly large sum of money was passed in favour of the respondent, Ali Raza, against Mohammad 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-debtore 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 bearing of the application. On the last date, namely, 31 May 1930, the decree-holder was absent and his pleader made a statement that he had 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 28 June 1930. On 25 June 1930, the decree- holder made an application before the Court of Allahabad for the setting aside of the ex parte 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 Secs.141 and 151, and Order 47, Rule 1, Civil P.C. After issuing notice and hearing objections 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 reopened and is still pending.

(2.) 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.

(3.) We cannot go into the question of the propriety of the order in revision. The sole question which arises for consideration before us whether the Allahabad Court had jurisdiction to set aside its previous order. No doubt Order 9 would not in terms apply to an application for execution proceedings. In view of the pronouncement of their Lordships of the Privy Council in the case of Thakur Prasad V/s. Fakirullah (1895) 17 All 106, Section 141, Civil P.C., does not apply to execution proceedings, and therefore Order 9 cannot be made applicable to such proceedings with the aid of Section 141.