Bhagwan Savalaram Sonar vs Dattatraya Jayakt Purandhare and Another

Norman Macleod, C. J.

This is an application by an auction-purchaser asking this Court to intervene in the matter of an order passed by a Subordinate Judge in Miscellaneous Application No. 70 of 1924. The opponent was a judgment-debtor in Darkhast No. 879 of 1923. His property having been sold in execution he made an application under Order XXI, Rule 89, of the CPC Code, for setting aside the sale after depositing in Court, for payment to the decree-holder, the amount specified in the proclamation of sale and for payment to the purchaser, five per cent, of the purchase money. The applicant absented himself on the day fixed for hearing so that his application was dismissed for want of appearance. He then applied to set aside the order of dismissal. The learned Judge dealing with it on its merits as an application under Order IX, Rule 9, came to the conclusion that the applicant had failed to assign any sufficient cause for his absence. But the learned Judge considered that this was a case for the exercise of his inherent powers u/s 151, '' and he, therefore, directed that, if the applicant paid the costs of the auction-purchaser within a week, the application would be granted.

A question arises in limine whether Order IX, Rule 9, would apply to an application made under Order XXI, Rule 89. Section 141 directs that" 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". It is pointed out by Mr. Mulla at p. 307 that the section does not apply to proceedings in execution. In Hajrat Akramnissa Begam v. Valiulnissa Begam (1893) 18 Bom. 429. it was held that a Court cannot, u/s 103, (which corresponds to Order IX, Rule 9) restore to the file an application for execution which has been dismissed for default.

In Hari Charan Ghose v. Manmatha Nath Sen (1913) 41 Cal. 1. it was held that Order IX, Rule 13, was not applicable to a proceeding under Rules 100 and 101 of Order XXI. The learned Chief Justice there gives the reason why the explanation added to Section 647 of the Code of 1882 was omitted in the Code of 1908 with the result that Section 141 does not make applicable to proceedings in execution the procedure provided by the Code with regard to suits. An endeavour seems to have been made to get rid of the difficulty with regard to an application made for setting aside a sale which had been dismissed for want of appearance, by treating it as an original proceeding.

In Bipin Behari Shaha v. Abdul Bank (1916) 41 Cal. 950. a reference is made to the case of Deljan Nichha Bibee v. Hemanta Kumar Ray (1915) 19 C.W.N. 758. in which it was held that Order IX, Rule 9, was applicable to a case, in which an application for setting aside a sale had been dismissed, as such an application should be treated as an original proceeding ; and that decision was approved of.

Now it is difficult to see how an application to set aside a sale by a judgment-debtor under Order XXI, Rule 89, could be considered an original proceeding and not a proceeding in execution. Order XXI is headed "Execution of Decrees and Orders". When the property of a judgment-debtor is sold according to the provisions of the rules contained in that order with regard to sales, and an application is made by the judgment-debtor to save his property from being sold by paying the amount that is due to the decree-holder, it should, in my opinion, be considered to be an application in execution proceedings. It cannot be said to be an original proceeding standing by itself, such as an application under the Guardians and Wards Act, or an application for winding up of a Company. It was, therefore, not competent to the learned Judge to deal with this application on its merits.

That being so, it is difficult to see how the provisions of Section 151 would apply. But, apart from that, it is certainly desirable that the provisions of Section 151, as we have pointed out more than once, which gives inherent powers to the Court, should be applied with the greatest caution. If a party is absent from the Court when he ought to have been present, and cannot give any satisfactory reason for bis absence, then there can be no particular ground for the Court to exercise its inherent powers in his favour, so as to interfere with the rights of third parties, such as an auction-purchaser, which have come into existence owing to his default.

We must, therefore, set aside the order of the Subordinate Judge. The result is that the sale is confirmed. The applicant is entitled to his costs of the rule.

Coyajee, J.

I agree.