RAGHUNATH HARIHAR Vs. KHATUM BI

JUDGEMENT

(1.) 1. The non-applicants Nos. 1 to 4 are successful objectors in an execution case. The sole ground on which I am asked to interfere is that the objection was dismissed in default, and the order restoring it is without jurisdiction. It was held by Jackson, A. J. C., in Atmaramsao v. Rambharos AIR 1930 Nag 48 that a Court has no jurisdiction to restore a suit dismissed for default except under the provisions of Order 9, Schedule 1, Civil P. C. I see no reason to dissent from that decision. The reason underlying it is well stated by Oldfield, J., in Neelaveni v. Narayana Reddi AIR 1920 Mad 640: It is in my opinion impossible to presume that the rules (i. e. Rules 9 and 13, Order 9) under consideration contain an imperfect statement of the law on the very definite topic, with which they deal, the provision of a summary procedure for the re-opening of ex parte proceedings.

(2.) THIS reason has no application to the facts I am considering, since, as the Privy Council have held in Thakur Prasad v. Fahirullah (1895) 17 All 106 the procedure provided in the Code in regard to suits does not apply to applications for execution of decrees. In Alagasundaram Pillai v. Pichuvier AIR 1929 Mad 757 Wallace, J., has remarked: It would be surprising if, in the matter of execution, the Court has inherent powers which it does not possess in the case of a suit.

(3.) IN my opinion since the procedure provided in the Code does not apply to applications for execution of decrees, the Court must rely on its inherent powers and adopt a procedure demanded by equity and convenience when Order 21, Schedule 1 does not provide any procedure. It has been pointed out in Hari Singh v. Bulaqui Mal & Sons AIR 1930 Lah 20 that no power to dismiss an application for execution on failure of the decree-holder to appear is-expressly conferred; obviously, when the decree-holder does not appear, no other order except dismissal for default is suitable. Similarly, if it is obvious that the failure of a decree-holder to appear was due to no fault of his, the application for execution should be restored to file. This view has been taken in Hari Singh v. Bulaqui Mal & Sons AIR 1930 Lah 20 and Sarat Chandra Bose v. Bisweswar Mitra AIR 1927 Cal 534. It is urged that the exercise' of inherent powers was improper, as another remedy, namely the filing of a suit existed.