Kali Shettathi and Another vs Shama Rau and Others

The respondent are desree-holdars whose application for execution was originally dismissed for default. They obtained its restoration under

Order IX, Rule 9, of the Coda of Civil Procedure, by presenting Execution Application No 86 of 1913.

The appellants, the judgment-debtors, then applied to the District Munsif in Execution Application No. 39 of 19 3 to review his order of

restoration, on the ground that if had been passed without notice to them. He granted a review and set aside his order of restoration.

Respondents then in Execution Application No, 52 of 1913 applied for a review of the original order dismissing the execution petition for

default. The District Munsif granted a review and set aside the dismissal in the order, which is the subject of the present proceedings. The District

Judge dismissed the appellants'' appeal with reference to Order XLIII, Rule 1 (u) and Order XLVII, Rule (7), of the Code of Civil Procedure.

We have before us an appeal and a revision petition, but the conclusion we have come to on the merits, makes it unnecessary for us to decide

whether the former will lie.

5 Both are argued, on the ground that the District Mansif''s order on Execution Application No. 52 of 19i3 was passed without jurisdiction

because it offended against Order XLVII, Rule 9, of the Code of Civil Procedure, being in effect an order reviewing the previous order refusing to

restore the original execution petition, which he passed after granting a review on Execution Petition No. 39 of 1913.

In order to deal with this argument, close attention to the coarse of the proceedings is necessary. Execution Application No. 39 of 1913 was

disposed of on the legitimate grounds that (1) Order IX, Rule 9, of the CPC required notice to the other side, which had not been given; (2) Order

IX does not apply to execution proceedings at all [vide, Hajrat Akrammssa Begam v. Valiulmssa, Begam 9 Ind. Dec. 795 and Dhonkal Singh v.

Phakkar Singh 15 A.d 84: 7 Ind. Dec. 770, authorities which have not lost their validity]. Under the present Code (1) would no doubt have

justified only a re-hearing after notice had been given. Bat (2) was a sufficient ground for the lower Court''s re-call of its order of restoration at

once, the result being only that Execution Application No. 36 of 1913 stood dismissed. It is not possible to enlarge the scope of this order by

implication and hold that it in any way affected the order of dismissal of the original execution petition, since that order had never been the subject

of any subsequent proceedings. In fact the whole effect of the order on Execution Application No. 39 of 1913 was that the proceedings

subsequent to the order of dismissal were a nullity. There is accordingly no foundation for the contention that Execution Application No. 52 of

1913 which in terms asked for a review only of the original order of dismissal, was for a review of the later order on Execution Application No. 39

of 1913 or that the order passed on the former was for a review of the latter.

The appeal against appellate order and civil revision petition fail and are dismissed with costs, one set only allowed, those in the civil revision

petition.