KAJULURISAMI Vs. SOORYANARAYAN RAJU

JUDGEMENT

(1.) This is a Civil Revision Petition under Section 115 of Act V of 1908 and Section 107, Government of India Act.

(2.) Petitioner applied under Order 9, Rule 9 to restore his petition for setting aside an execution sale which had been previously dismissed for default. The lower Court has dismissed the application on the ground that such an application does not lie against orders in execution proceedings following Bhubaneswar Prasad Singh V/s. Tilakdhari Lal [1919] 4 Pat. L.J. 135. Hence this petition.

(3.) The Patna Bench has ruled in terms that Order 9, Rule 9 does not apply, and the question is whether this ruling should be followed with special reference to Subbiah Naicker V/s. Ramanathan Ghettiar (1914) 37 Mad. 462. the Madras ruling to the contrary. In the Madras ruling, at p. 475, the following passage occurs: It is contended that Order 9, Rule 13, Civil Procedure Code, does not apply to ex parte orders passed in execution, but only to ex-parte decrees in suits. We think that that argument cannot be accepted. Orders in execution which, come under Section 47, Civil Procedure Code, are decrees as defined in Section 2 of the Code and hence ex parte orders passed in execution are ex-parte decrees. 0. 9, B, 13 provides generally for the setting aside of ex parte decrees and not only for the setting aside of those classes of ex parte decrees which are not also orders passed under Section 47 in execution proceedings.