ASUTOSH GHOSH Vs. INDU BHUSAN GHOSE

JUDGEMENT

(1.) The facts of the case out of which this Rule arises are these : The opposite party brought a money suit against the petitioner claiming a sum of Rs. 1,800. In the course of this suit certain interrogatories were delivered to the plaintiff by the defendant. The plaintiff did not answer these interrogatories by the date fixed by the Court. On the date fixed for the delivery of the answers to the interrogatories by the plaintiff, the opposite party's pleader stated that he had no further instruction. On this the Court dismissed the plaintiff's suit for non- prosecution tinder Order 11, Rule 21, Civil P.C. The plaintiff then moved the Court under Order 9, Rule 9 and Section 151 of the Civil P.C., praying to have the suit restored for various reasons which it is not necessary to set forth.

(2.) The learned Judge thus dealt with the matter. He stated that it seemed a fit case for restoration. He noted that it had been argued that neither Order 9, Rule 4 nor Section 152 applied to a suit dismissed under Order 11, Rule 21. He, however, held that it is quite immaterial which of the sections applied. He further held that it did not matter in the least if an application for a review was necessary. The Court, he held, had sufficient power and authority to set aside the order of dismissal if justice demanded it and he proceeded to set aside the order. He did not, as far as I can ascertain from his judgment, apparently purport to act under any section of the Code. Against this order the defendant moved this Court and he contends that the Judge had no jurisdiction to do what he did. Now, under what provisions of law the learned Judge purported to act it is not easy to discover. If I have understood him rightly he purported to act under no provisions of law. He seems to think that if justice demanded it he could set aside any order whether the Code empowered him to do so or not. Mr. Boy Choudhury contends that the learned Judge must be considered to have acted under Section 151 of the Civil P.C., for admittedly there is no other section of the Code under which he could have acted. It may be pointed out that Courts of law are bound to act in accordance with the law prescribed and not according to a Code of their own making. Their jurisdiction is derived from the Code and by the provisions of the Code they must be guided. I must take it, therefore, that the learned Judge acted under Section 151. If ho did not, his action is wholly illegal and without jurisdiction.

(3.) We have now to consider whether he had jurisdiction under Section 151 to review his former order and set it aside. Now, to my mind, Section 151 can have no application to a case which is already provided for by the Civil P.C. A Court cannot review its own order under Section 151. Order 47 provides the cases in which a Court can review its own order and it seems to me by implication that unless the case falls within Order 47, a Court has no power to review. If a Court can deal in review with case that do not fall within Order 47, then obviously it was a waste of time to have enacted Order 47, or indeed to have enacted a Code at all. For if all the matters which are dealt with under the Code can be dealt with under Section 151 as has been seriously contended then obviously the whole of the elaborate Code could have been contained in the five lines of Section 151.