DASARATHY CHAKRAVARTY Vs. MAHARAJA KHAUNISH CHANDRA RAY

JUDGEMENT

(1.) The appeal raises the question whether Order 9, Rule 9, Civil P.C. is applicable to an application made for setting aside a sale in execution of a decree under Order 21, Rule 90, Civil P.C. The question arises in this way : The appellant before us presented an application for setting aside a sale under Order 21 Rule 90. On the date fixed for the hearing of the case the applicant was not ready with his evidence and he asked for time. Time was granted on one occasion but on the next occasion he was still not ready with his evidence. Further time was asked for and the learned Subordinate Judge refused to grant time and thereupon the pleader for the applicant stated that he had no evidence and no further instructions. Upon that the application for setting aside the sale was rejected for default of the applicant. This order of dismissal was passed on the 23 August 1924. On the 20 September 1924 one of the judgment-debtors put in an application purporting to have been made under Order 9, Rule 9, Civil P.C. for restoration of the application for setting aside the sale. The learned Subordinate Judge rejected the application on the ground that that rule did not apply to such an application. The judgment-debtor appeals to this Court and a preliminary objection has been taken to the competency of the appeal on the ground that there was no appeal under the Code against an order made by the Subordinate Judge. In answer to that objection the learned-vakil for the appellant relies on Order 43, Rule 1, Clauses (c) and (j), Civil P.C. Clause (c) only refers to an order rejecting an application for setting aside the dismissal of a suit. That clause, therefore, does not apply in terms.

(2.) It is contended that the order falls under Clause (j), and reliance has also been placed on the case of Kali Kanta Chuckerlutty V/s. Shyam Lal Das Basu [1916] 25 C.L.J. 163, in support of an appeal. This appeal is not against the order of dismissal for default which might fall within Clause (j) of that rule. But this appeal is against the order refusing to set aside the dismissal for default. It is contended on behalf of the respondent that on the authority of the case of Jung Bahadur V/s. Mahadeo Prosad [1903] 31 Cal. 20, which was decided under the old Code, no appeal lies against such an order. We think that the contention of the respondent should be accepted that there is no appeal against an order refusing to set aside an order of dismissal for default of an application such as this. Then with regard to the main question whether Order 9, Rule 9, applies to such a case as this, we are asked to set aside the order in the exercise of our revisional jurisdiction. We are of opinion that the case of Thakur Pershad V/s. Sheikh Fakirulla [1894] 17 All. 106 is really decisive of the question. There, their Lordships in dealing with the contention that by virtue of Section 647 of the Code of 1882, Section 373 of the Code applied to execution proceedings observed as follows: The suggestion is that it is applied by force of Section 647. But the whole of Chap. 19 of the Code, consisting of 121 sections, is devoted to the procedure in executions, and it would be surprising if the framers of the Code had intended to apply another procedure, mostly unsuitable, by saying in general terms that the procedure for suits should be followed as far as applicable. Their Lordships think that the proceedings spoken of in Section 647 include original matters in the nature of suits such as proceedings in probates, guardianships, and so forth, and do not include executions.

(3.) Their Lordships approved of the case of Bunko Behary Gangopadhya V/s. Nil Madhub Chuttopadhya [1891] 18 Cal. 635, where the matter is stated in equally clear terms. The section of the present Code corresponding to the old Section 647, is 141, which runs thus: 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.