SALAR BEG SAHEB Vs. KARUMANCHI KOTAYYA

JUDGEMENT

(1.) The facts are these: Respondent's suit was dismissed for default. He applied to have it restored under Order 9, Schedule 1, Civil Procedure Code, and that application also was dismissed for default. He then applied again under Order 9 to have the application restored and it was restored. The other party comes up in revision on the ground that the provisions of Order 9 do not govern applications made under the order itself.

(2.) Authority on the point is divided. The Calcutta High Court has held one way, Bipin Behari Shaha V/s. Abdul Barik [1917] 44Cal. 950, the Patna High Court the other, Ramgulam Singh V/s. Deonarin Singh [1919] 4 P.L.J. 287. Phillips, J., in a case exactly parallel to this case has recently followed the Calcutta view C.R.P. No. 1014 of 1924: Venkatanarasimha Rao V/s. Suryanarayana A.I.R. 1926 Mad. 325. In C.R.P. No. 679 of 1923 Kaliakkal V/s. Palani Koundan A.I.R. 1926 Mad. 412, Devadoss, J., and I held that Order 9 does not apply to proceedings in execution of decrees. It is now argued that we stated the proposition too widely; in other words, that all that was laid down in Thakur Prasad V/s. Fakir Ullah [1395] 17 All. 106 was that Order 9 did not apply to execution petitions. If, however, it does not apply to the petitions themselves, it is difficult to see how it can apply to applications incidental to and arising out of them.

(3.) What we are now considering is a different point. No doubt, the Privy Council decision is open to a limited construction, but what obviously was intended to be excluded by the Legislature from the operation of Section 141, Civil Procedure Code, was any proceeding in a suit. This is shown by the explanation added to Section 647 by Act VI of 1892. As pointed out by Phillips, J., the proceeding we are dealing with is not proceeding in a suit; for the suit has been dismissed. I would follow his decision and dismiss the petition with costs. Madhavan Nair, J.