Arunachalam, minor, by mother and guardian Periammai vs P.K.A.C.T. Veerappa Chettiar through his authorised agent S. Ramaswami Aiyar

Horace Owen Compton Beasley, Kt., C.J.—The plaintiff obtained a decree for money against the 6th defendant. The 6th defendant died

and his minor son was brought on record as his legal representative as 8th defendant. The decree-holder applied by E. A. No. 17 of 1929 for

attachment of certain Immovable properties in the hands of the 8th defendant and notice was ordered on him. When the petition came on for

hearing on the 29th January, 1929, in the absence of the 8th defendant who did not appear, the learned Subordinate Judge ordered attachment of

the Immovable properties as prayed for by the decree-holder. Subsequently the 8th"" defendant applied on the 2nd February, 1929, under Order

9, Rule 13 of the CPC to set aside that order on the ground that his non-appearance on the 29th January was due to the late appearance of his

vakil. He alleged that his vakil had only been a minute late in appearing before the Court and that orders were passed by the learned Subordinate

judge a minute before the said vakil came to Court. The decree-holder contended that the petition was not maintainable under any of the

provisions of the Code. The learned Subordinate Judge dismissed the 8th defendant''s application holding that Order 9 of the Code was

inapplicable to execution proceedings. From that order of the learned Subordinate Judge an appeal was preferred to the High Court. That appeal

was considered by a Bench and the following question has been referred by that Bench to the decision of this Full Bench, namely, ""Whether Order

9, Rule 13, Schedule I, Civil Procedure Code, applies to such execution proceedings under Order 21 as also fall within Section 47 of the Code"".

In the Order of Reference certain cases have been referred to, the most important of which are the decisions in Subbiah Naicker v. Ramanathan

Chettiar ILR (1914) 37 M. 462: 26 M.L.J. 189 and Kaliakkal v. Palani Gonndan (1925) 50 M.L.J. 200. These two decisions are directly in

conflict. In the former case it was held that Order 9, Rule 13, Civil Procedure Code, applies to ex parte orders in execution and unless they are set

aside by application under Order 9, Rule 13, or by appeal, they cannot be questioned in the further stages of execution proceedings. On page 475

it is stated as follows:

It is contended by the appellant''s learned vakil, Mr. L.A. Govindaragliava Aiyar, that Order 9, Rule 13, Civil Procedure Code, does not apply to

ex parte orders passed in execution but only to ex parte decrees in suits. We think that that argument cannot be accepted. Orders in execution

which come u/s 47, Civil Procedure Code, are decrees as defined in Section 2 of the Code and hence ex parte orders passed in execution are ex

parte decrees and Order 9, Rule 13 provides generally for the setting aside of ex parte decrees and not only for the setting aside of those classes

of ex parte decrees which are not also orders passed u/s 47 in execution proceedings. We are fortified in this view by the decision in Krishna

Chandra Pal v. Protap Chandra Pal (1906) 3 C.L.J. 276.

The last mentioned decision is the only decision upon this point which is in agreement with the decision in Subbiah Naicker v. Ramanathan

Chettiar ILR (1914) 37 M. 462 : 26 M.L.J. 189. In Kaliakkal v. Palani Goundan (1925) 50 M.L.J. 200 Devadoss and Waller, JJ, took the

opposite view. Before us it was contended that the ex parte order passed against the 8th defendant attaching his property was a decree within the

provisions of Section 47 of the Code and that since it is a decree and since Order 9 provides for the setting aside of ex parte decree the 8th

defendant''s petition was maintainable. We are invited to interpret Order 9, Rule 13, as applying to all ex parte decrees whether in suits or in

execution proceedings. On the other side it is contended that Order 9 does not apply to execution proceedings at all and that the whole scheme of

the order is to provide for procedure in suits. In the rules of that order the words ""summons,"" ""defendant"" and ""suit"" are used all of which are

inappropriate to execution proceedings and in Venmreddi Ramaraghava Reddi v. Rajah of Venkatagiri (1926) 52 M.L.J. 123 it was held that

cases of dismissal for default of an execution petition are not within Order 9 at all. It is quite true that in a Full Bench decision of this Court, namely,

Alagasundaram Pillai v. plchuvier ILR (1929) 52 M. 899 : 57 M.L.J. 381, in which was raised the question of the power of this Court to set aside

an order of dismissal for default it is stated on page 909:

It is not contested that Order 9 does not apply to proceedings in execution except such as involve the determination of any question u/s 47, in

which case the orders thereon would amount to decrees

and further on

the orders passed in the proceedings would be decrees and Order 9 would apply.

It may be observed that these observations are obiter and unnecessary for the decision of the questions referred; and it is quite clear that this

question was not at all argued before that Full Bench although such a position may have been stated by way of an example. It is beyond dispute

that such an ex parte order as was passed in these execution proceedings is a decree within the provisions of Section 47 but it does not follow that

the provisions of Order 9, Rule 13 apply to such a decree. If Order 9, Rule 13 applies only to suits, then the fact that such an ex parte order is a

decree within the provisions of Section 47 is of no real assistance to the defendant. Sub-section (2) of that section enables the Court to treat a

proceeding under the section as a suit or a suit as a proceeding. The use of the word ""treat"" is an indication to us that the proceedings under that

section are not suits. Moreover when Section 2 (2) of the Code which defines ""decree"" is referred to, it will be seen that it shall be ""deemed"" to

include the determination of any question within Section 47. Here again the use of the word ""deemed"" is inconsistent with something that is actual

or real. It is quite clear to us that Order 9 does not apply to anything but suits and has no application to execution proceedings and that such an ex

parte order whilst it is a decree is not a decree in a suit. That the provisions of Order 9 were not meant to apply even to appeals is evident from the

fact that the legislature has made similar rules for governing cases of non-appearance of parties in appeals, viz., rules 11, 17, 18, 19 and 21 of

Order 41. It follows therefore that the answer to the question referred to us must be in the negative. Although the facts of this case do not disclose

that the 8th defendant has suffered any real hardship, we are of the opinion that many cases may occur in execution proceedings where to prevent

a judgment-debtor or a decree-holder having an application or petition restored under Order 9, Rule 13 may be a great hardship and immediate

steps will be taken to frame a new rule making Order 9 applicable to such proceedings in execution.

Ramesam, J.

I have no alteration or addition to make.

Reilly, J.

I agree.

Anantakrishna Aiyar, J.

I agree.

Sundaram Chetty, J.

I agree.