MOHARMANI KUER Vs. BHANKUMAR CHAND

JUDGEMENT

(1.) This is an application for revision of an order of the Subordinate Judge of Arrah revoking an order which had been made under Rule 58, Order 21, Civil P.C., without notice having been given to the decree-holder. When the petition under Order 21, Rule 58 was filed by a stranger to the proceedings, on a date which was not one of the dates fixed for any step in the execution case, a direction was given that the petition should be registered, that it should be put up on the fixed date for hearing, and that the decree-holder should be informed. On the date fixed neither party appeared; but after adjournment the application was heard in the absence of the decree-holder. It was subsequently brought to the notice of the Subordinate Judge's successor that his predecessor's order that the decree-holder should be informed of the application and of the date fixed for hearing had not been carried out: The decree-holder prayed that in exercise of the inherent powers of the Court, the order made under Rule 58 might be recalled and the case might be reheard. The Subordinate Judge after hearing the parties decided that he possessed the power to revoke the order made under Rule 58, relying mainly on the decision of the late Sir Jwala Prasad in Hanuman Lal V/s. Mt. Ram Peari 1921 Pat 491. The objector has applied for revision of the order.

(2.) The learned advocate for the petitioner argues that the Subordinate Judge had no jurisdiction to alter a judgment when it had once been delivered under Order 21, Section 58 or to recall an order, because Order 9, Rule 13 has no application to execution proceedings, and the powers conferred by Section 151, Civil P.C., cannot be invoked to take the place of Order 9, Rule 13 in a case to which that rule would not apply. He relies upon the decision of the Pull Bench of the Madras High Court in Alagasundaram Pillai V/s. Pichuvier 1929 Mad 757 wherein these two rules were definitely laid down. It may be conceded, and indeed it is conceded, by Mr. S.N. Bose, on behalf of the opposite party, that it is not possible to criticise this general statement as a general statement of the law: and if the decree-holder's absence had been after notice, although it might have been attributable to a cause which in a case in which Rule 13, Order 9 was applicable would have justified the application of the provisions of that Rule, the explanation of absence could not have been set forward as a reason for revoking the order under Order 21, Rule 58; and Section 151, Civil P.C., could not in those circumstances have been applied.

(3.) The learned Subordinate Judge appears to have correctly perceived the true principle, which was laid down by Sir Jwala Prasad in Bhikhan Gir Gossain v. Jalpadat Jha 1921 Pat 293, that the only justification for the exercise of the inherent powers under Section 151 in a case of this nature would be the fact that the wrong was caused by an error or mistake of the Court itself; in this case by the omission of the officers of the Court to bring the Court's order to the notice of the decree-holder. In Tikait Ajant Singh V/s. Sundar Mal 17 CWN 862, the Calcutta High Court pointed out that a judicial order which may affect or prejudice any party cannot be finally made unless he has been afforded opportunity to be heard; and that if such an order is made ex parte, that is to say, without notice to the opposite party, it would be made subject to the implication that it may be revoked at the instance of any party prejudiced thereby; and the Court has inherent power to give such directions as the justice of the case may require. In the present case, since the ignorance of the decree-holder was due to the default of the officers of the Subordinate Judge's Court he rightly invoked the powers conferred by Section 151, Civil P.C., and I cannot interfere with his order. This application is dismissed with costs. Hearing fee one gold mohur.