ABDUL HAMID Vs. FIRM SHYAM LAL CHIMAN LAL

JUDGEMENT

(1.) This is an application for revision of an Order passed by the learned Judge of the Small Cause Court at Agra. It seems to me that the applicant and the lower Court have acted raider a misapprehension as regards the law applicable to the circumstances of the case. The applicant was the judgment-debtor in certain execution proceedings in the lower Court taken at the instance of one Nawal Kishore. The original decree-holder had died and Nawal Kishore applied for execution of the decree. The judgment-debtor objected on the ground that Nawal Kishore was not competent to apply for execution of the decree. The case was fixed for 7 April 1934, when the applicant was absent. The Court did not dispose of his objection on the merits and did not decide whether Nawal Kishore was competent to apply for execution of the decree or not, but passed an order "striking off the objection for default." A few days later, the judgment-debtor made an application purporting to be one under Secs.141 and 151, Civil P.C., and praying that his objection dismissed for default be restored. He made certain allegations as regards the circumstances in which he was not present on 7 April 1934, when his objection was dismissed. The learned Judge did not decide the questions raised by the application and dismissed it on the preliminary ground that no security was furnished, as required by the proviso to Section 17, Small Cause Courts Act. The present application is for revision of the last mentioned order.

(2.) The learned Counsel for the applicant contends that the proviso to Section 17, Small Cause Courts Act, applies only to cases in which a defendant, against whom an ex parte decree has been passed, applies for an order to set aside the ex parte decree, and that it does. not apply to cases in which ex parte orders have been passed in miscellaneous proceedings. The lower Court seems to have been of opinion that as the order, dated 7 April 1934, was one under Section 47, Civil P.C., and therefore a decree, the proviso to Section 17, Small Cause Courts Act, is applicable, and no application for an order to set aside the decree (that is, the order under Section 147), is maintainable without security being furnished.

(3.) The applicant appears to have laboured under the misapprehension that, unless the order dismissing his objection for default be set aside, he is not entitled to press his objection. This was a mistaken view. His objection had not been dismissed on the merits, and it was open to him to take the same objection by another application instead of applying for the order of dismissal being set aside. His objection had not been decided on the merits, and there was nothing in the order of 7 April 1934, to prevent him from pressing the same objection again. There being no adjudication no question of res judicata can arise. It should be noted that the provisions of Order 9, Civil P.C., are not applicable to execution proceedings.