DILJANMIHHA BIBI Vs. HEMANTA KUMAR ROY

JUDGEMENT

(1.) AN application for setting aside an execution sale under Section 47 and Order XXI, Rule 90, of the Civil Procedure Code was dismissed for default. The judgment-debtor made an application for setting aside that order under Order IX, Rule 9. The learned Munsif rejected the application, holding that Order IX had no application to the case. This Rule was granted on the opposite party to show cause why the application should not be entertained either under Order IX or Order XLVII, or why such other order should not be made as to this Court might seem fit and proper. It is admitted by the learned Vakil for the petitioner that Order XLVII is not open to him, as the application was made to the successor of the trying Munsif. He relies upon Order IX or Section 151 of the Civil Procedure Code. I do not think he is entitled to rely on Section 151. To allow him to do so would be to allow him to apply for a review which is expressly prohibited by the Code. He must stand or fall by Order IX. There is some apparent diversity of opinion as to whether the provisions of Order IX are applicable to matters arising in execution. In the case of Safdar Ali v. Kishun Lal 7 Ind. cas. 241 : 12 C.L.J. 6 it was held that an application for re-hearing a matter arising in execution could be entertained under Order IX, Rule 9. This is an express authority on the point. This case vas distinguished in the case of Asim Mandal v. Raj Mohan Das 11 Ind. Cas. 385 : 13 C.L.J. 532 and it was held that all the provisions of Order IX were not applicable to execution proceedings. That was a case in which an application for execution was dismissed for default and it was held that a fresh application for execution would nevertheless lie as Order IX, Rule 9, was not applicable to an application for execution. The matter came under discussion again in the case of Hari Charan Ghosh v. Manmatha Nath Sen 19 Ind. Cas. 683 : 18 C.W.N. 343 : 41 C. 1 and it was held that Order IX. Rule 13, was not applicable to a proceeding under Rules 100 and 101 of Order XXI. Both these cases rely on the history of Section 647 of the old Code in the course of its transformation into Section 141 of the Civil Procedure Code of 1908. Section 647 of Act XIV of 1882 was: "The procedure herein prescribed shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction other than suits and appeals." In consequence of some divergence of opinion between different High Courts as to whether the proceedings named in this section included execution proceedings, an explanation was added by Act VI of 1892: "This section does not apply to applications for the execution of decrees which are proceedings in suits". In 1894 the Judicial Committee held that even without the explanation the section did not apply to applications for execution of decrees, Thakur Prasad v. Fakir Ulla 17 A. 106 : 22 I.A. 44 : 5 M.L.J. 3 : 6 Sar. P.C.J. 526. That was a case in which an application for execution had been struck off at the request of the decree-holder without any permission to apply again, and the question was whether Sections 373 and 374 barred a fresh application. This objection was overruled by their Lordships. The result of this decision was that the explanation was held to be superfluous. Section 141 of the present Code runs as follows: The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction." Supposing that the alteration in language is not material and adopting the construction given by the Privy Council to Section 647 of the old Code, it will follow that Section 141 does not apply to application for execution.

(2.) AN application for setting aside a sale under Section 47 and Order XXI, Rule 90, is not an application for execution. It is a miscellaneous proceeding in the nature of an original proceeding in which the auction-purchaser is the principal interested party. I do not think that a proceeding of this kind is excluded from the purview of Section 141. I think, therefore, that Order IX, Rule 9, is applicable to cases of this kind and the cases of Asim Mandal v. Raj Mohan Dass 11 Ind. Cas. 385 : 13 C.L.J. 532; Hari Charan Ghosh v. Manmatha Nath Sen 19 Ind. Cas. 683 : 18 C.W.N. 343 : 41 C. 1 have not decided to the contrary. Both these rulings are careful in stating that all the provisions of Order IX are not applicable. Some of the provisions, therefore, may apply and the judgment of the learned Chief Justice in Hari Charn Ghosh v. Manmatha Nath Sen 19 Ind. Cas. 683 : 18 C.W.N. 343 : 41 C. 1 contains a clear indicaation that the interests of justice must have an important bearing in the matter: It is not as though there was any necessity in the interests of justice that the provisions of Rule 13, Order IX, should be applicable to proceedings in execution, because the order is not conclusive bat is subject to the right of the person aggrieved to bring a suit." In the present case the order is conclusive: there is no regular suit and a review is impossible. The petitioneris, therefore, without any remedy other than Order IX, Rule 9, to have an adjudication of her case. I may state that She Madras High Court favours the view contended for by the petitioner in this connection. See Subbiah Naicker v. Ramanathan Chettiar 22 Ind. Cas. 899 : 37 M. 462 : 26 M.L.J. 189 : (1914) M.W.N. 205 : 1 L.W. 251. I would, therefore, make the Rule absolute with costs three gold mohurs and direct that the petition of the applicant should be dealt with in due course of law.