RAMPRASAD Vs. KODU

JUDGEMENT

(1.) 1. This application for revision is directed against the order dated 5th March 1928, passed by the Subordinate Judge, Second Glass, Gadarwara, in execution case No. 641 of 1927, refusing to restore the execution proceedings to file which were dismissed by him for default of the applicant decree-holder on 17th December 1927. Briefly stated the facts are tha5 in civil suit No. 615 of 1915 the applicant had obtained a decree against the non applicant for Rs. 75 as far back as 12th November 1915, and that in spite of repeated applications for execution, satisfaction of the decree could not be obtained by the applicant. The last application for execution was made by the applicant on 1st April 1927, and a one-third share of a house belonging to the non-applicant was attached and sold for Rs. 76, the applicant himself being the purchaser. The order sheet of the execution proceedings, dated 12th November 1927 shows that the case was adjourned to 17th December for confirmation of the aforesaid sale on which date the decree-holder not appearing the case was dismissed for default. I doubt if the applicant's presence on that day was at all necessary. The Court was bound to confirm the sale under the mandatory provisions of Clause 21, Rule 92, Civil P.C.

(2.) HOWEVER , un 23rd December 1927, an application was put in for restoration of the execution proceedings to file on the ground that the applicant was prevented from appearing in Court on 17th December as he was required to attend upon his sister-in-law who was then lying dangerously ill and who in fact died the next day. It was also stated that since 12 years had elapsed from the date of the passing of the decree the applicant's remedy for taking out fresh execution was barred. An affidavit in support of the allegations in the position was also filed by the applicant. The learned Subordinate Judge did not disbelieve the affidavit and he also conceded that under the authority of Harlal v. Narayan A.I.R. 1922 Nag. 267 the Court had inherent powers under Section 151, Civil P, C, to restore to the file the application for execution which was dismissed for default.

(3.) I regret I am unable to appreciate the reasons summarized above which led the learned Subordinate Judge to pass the order of refusal to set aside the dismissal which is the subject of this revision application. On the facts disclosed in the application and the affidavit which have not been disbelieved by the lower Court, this was pre-eminently a case in which the inherent powers vested in a Court for doing bare justice to the parties should have been exercised in favour of the applicant. I, therefore, accept the revision and setting aside the orders of the lower Court dated 5th March 1928 and 17th December 1927, restore the execution proceedings to file and direct the lower Court to proceed to dispose of them according to law. The non-applicant will pay the applicant's costs in this Court. Pleader's fee Rs. 15.