Kajulurisami and Another vs Sooryanarayan Raju

Jackson, J.—This is a Civil Revision Petition u/s 115 of Act V of 1908 and Section 107, Government of India Act.

Petitioner applied under Order 9, Rule 9 to restore his petition for setting aside an execution sale which had been previously dismissed for

default. The lower Court has dismissed the application on the ground that such an application does not lie against orders in execution proceedings

following Bhubaneswar Prasad Singh v. Tilakdhari Lal [1919] 4 Pat. L.J. 135. Hence this petition.

The Patna Bench has ruled in terms that Order 9, Rule 9 does not apply, and the question is whether this ruling should be followed with special

reference to Subbiah Naicker v. Ramanathan Ghettiar (1914) 37 Mad. 462. the Madras ruling to the contrary. In the Madras ruling, at p. 475, the

following passage occurs:

It is contended 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. 0. 9, B, 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.

This line of reasoning is traversed in Chidambaram Chetti v. Theivanai Ammal AIR 1924 Mad. 1

It is now pointed out with some force that although this may justify the application of Article 164, Section 1, Limitation Act, it is no answer to the

consideration that the whole order including Rule 13 is applicable in terms only to suits and therefore it is to be inferred to the description of

decrees passed in them.

I agree and I think this criticism warrants the observation in the Patna Case that Subbiah Naicker v. Ramanathan Chettiar (1914) 37 Mad. 462

does not rest upon a sure foundation (p. 139). Oldfield, J., in his referring judgment in Chidambaram Chetti v. Theivanai Ammal AIR 1924 Mad. 1

quoted above, proceeds that a better foundation for the ruling in Subbiah Naicker v. Ramanathan Chettiar (1914) 37 Mad. 462 would be the plain

and unrestricted terms of Section 141, Civil Procedure Code.

This refers to the argument that u/s 14 the procedure in regard to suits is made applicable to all proceedings, and therefore O. 9 is applicable to

execution proceedings. But this is the very point taken in Balasubramania Chetti v. Swarnammal (1913) 38 Mad. 199 and it was held with special

reference to Thakur Prasad v. Fakirullah (1895) 17 All. 106 that a suit includes proceedings in execution and the word ""suit"" in Section 141 must

thereof be understood as including execution.

And therefore, of course, the other proceedings referred to in Section 141 would not refer to execution proceedings, which fall within the terms

''suit'' in that section. This removes the last prop to Subbiah Naicker v. Ramanathan Chettiar (1914) 37 Mad. 462 and I cannot hold that it is an

authority for disputing the ruling in Bhubaneswar Prasad Singh v. Tilakdhari Lal (1919) 4 Pat. L.J. 135.

And as regards authority outside Madras, it is only necessary to refer to the observation in Thakur Prasad v. Fakirullah (1895) 17 All. 106 that

the proceedings spoken of in Section 647 (now Section 141) CPC do not include execution. The order of the District Munsif is correct. Petition is

dismissed with costs.