BHAGVAN SAVLARAM SONAR Vs. DATTATRAYA JAYANT PURANDHARE

JUDGEMENT

(1.) This is an application by an auction-purchaser asking this Court to intervene in the matter of an order passed by a Subordinate Judge in Miscellaneous Application No. 70 of 1924. The opponent was a judgment-debtor in Darkhast No. 879 of 1923. His property having been sold in execution, he made an application, under Order 21, Rule 89, of the Civil P.C. for setting aside the sale after deposit of the amount of the purchase money for payment to the decree- holder, the amount specified in the proclamation of sale with five per cent, for payment of the purchaser. The applicant absented himself oh the day fixed for hearing so that his application was dismissed for want of appearance. He then applied to set aside the order of dismissal. The learned Judge, dealing with it on its merits as an application under Order 9, Rule 9, came to the conclusion that the applicant had failed to assign any sufficient cause for his absence. But the learned Judge considered that this was a case for the exercise of his inherent powers under Section 151, and he, therefore, directed that, if the applicant paid the costs of the auction-purchaser within a week, the application would be granted.

(2.) A question arises in limine whether Order 9, Rule 9, would apply to an application made under Order 21, Rule 89. Section 141 directs that: 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.

(3.) It is pointed out by Mr. Mulla at p. 307 that the section does not apply to proceedings in execution. In Hajrat Ahramnissa Begam V/s. Valinlnissa Begam [1893] 18 Bom. 429 it was held that a Court cannot, under Section 103 (which corresponds to Order 9, Rule 9), restore to the file an application for execution which has been dismissed for default.