Babu Jugul Kishore vs Bachinder Mohan and Others

Das, J.—These two revision petitions come before me under the following circumstances. The petitioner purchased and got possession of a jote belonging to the judgment-debtor on the 24th of March 1913. On the 23rd of April the opposite party preferred an objection under Order XXI, Rules 100 and 101. At the time of the hearing of the application the opposite party failed to put in an appearance, with the result that its petition under Order XXI, Rules 100 and 101, was dismissed for default on the 15th September 1918. On the 21st of October 1918 they put in a petition under Order IX, Rule 4, of the CPC for re-hearing of the petition which was dismissed for default. This petition for re hearing was rejected on the 29th November 1918 as no step was taken by the applicant. On the 30th November 1918 there was another application under Order IX, Rule 4, by the opposite party for restoring to file the execution case which was dismissed for non-prosecution. On 20th January 1919 the petition of the 30th November 1918 was allowed and the re-hearing of the case was restored to its original number, that is to say, the re-hearing case which was rejected on the 29th November 1918 was restored to its original number. Against this order of the 20th January 1919 there is one petition being Revision Case No. 109 of 1919. Subsequently by a further order, dated 3rd February 19l9, the re hearing petition was allowed and the objection case was restored to its original number. As against this order of 3rd February 1919 there is another application which is Revision Case No. 108 of 1919.

The point which has been taken before me by the learned Counsel appearing on behalf of the petitioner is very short, and it is this: that the Court had no power under Order IX Rule 4, ''''to restore a case under Order XXI, Rules 100 and 101. The Special Bench of this Court has decided in the case of Bhubaneswar Trusad Singh v. Tilakdhari Lal 49 Ind. Cas. 617 : (1919) Pat. 75 : 4 P.L.J. 135 that Order IX, Rule 9, of the Code of Civil Procedure, 1908, does not apply to an order dismissing for default an application to set aside under Order XXI, rule �0, a sale held in execution of a decree. In my opinion that decision is applicable to the facts of this case. It seems to me that Order IX, Rule 4, expressly applies to a suit and it cannot be urged at all that a case under Order XXI, Rules 100 and 101, is a suit within the meaning of Order IX, Rule 4.

I hold that I am bound by the decision of the Special Bench of this Court and I would, therefore, allow these applications and set aside the orders passed by the learned Munsif on the 20th January 1919 and 3rd February 1919. The petitioner is entitled to his costs which I assess at two gold mohurs in each case.