NARAYANA CHETTIAR Vs. PCMUTHU CHETTIAR

JUDGEMENT

(1.) The 1 respondent herein filed an application on 23 February, 1920 for the execution of the decree in O.S. No. 14 of 1908. The application after several adjournments came on for hearing on nth October, 1921 when, owing to the absence of the decree-holder's pleader, it was dismissed. The decree-holder's pleader appeared before the Court some time after and the Court restored the application to file without notice to the opposite party. On the same day, the application was made by the decree-holder for an amendment of the execution application. When the amendment application came on for hearing the judgment-debtors contended that the order restoring the petition to file was illegal and that the amendment petition should not be allowed. The Subordinate Judge of Ramnad held that Order 9, Rule 9, Civil Procedure Code, was not applicable to execution proceedings and that the order restoring the petition to file, if treated as an order under Order 47 was illegal as the other party was not given notice of the application. In the result, he dismissed the petition for execution as well as the application for amendment. On appeal the District Judge held relying on Janakl Nath Hore V/s. Prabhasini Dasee (1915) I.L.R. 43 C 178 that the Court has power under Order 47 to restore an application dismissed for default of appearance, of the applicant and that even if it was not an order under Order 47, it should be treated as one made under Section 151. He set aside the order of the Subordinate Judge and remanded the execution application for disposal according to law. Defendants 5 and 7 have preferred this appeal against the order of the District Judge.

(2.) The first contention raised by Mr. C.S. Venkatachariar for the appellants is that the Court had no power to restore an application to file which was dismissed for default as Order 9, Civil Procedure Code, did not apply to execution proceedings.

(3.) We have recently held in a case reported in Kaliakkal V/s. Palani Goundan (1925) 50 M L J 200 that Order 9, Civil Procedure Code, did not apply to execution proceedings. Mr. Patanjali Sastri who appears for the 1 respondent does not challenge the correctness of this decision and concedes that Order 9 is not applicable to execu-tion proceedings. The order of the Subordinate Judge was not, therefore, one passed under Order 9, Rule 9.