Kaliakkal vs Palani Koundan and Another

Devadoss, J.—The only question in this revision petition is whether Order 9, Rule 13 applies to execution proceedings. The District Munsif

of Namakkal passed an ex parte order on 26th October, 1922, directing delivery of property free from obstruction. Defendants 5 and 6 applied

on 9th November, 1922, to set aside the ex parte order. The District Munsif has set aside the ex parte order and passed a fresh order. The

auction purchaser who is also the decree-holder has preferred this Civil Revision Petition. The question for decision is, was the order of the District

Munsif setting aside his previous ex parte order passed without jurisdiction?

The answer to the question depends upon the wider question whether Order 9 applies to execution proceedings. There are several cases on the

point which are not all reconcilable. In Tirthaswami v. Annappayya ILR 18 (1894) M. 131 Muthuswami Aiyar, J., held that Chapters 7 and 13 of

the old Code did not apply to execution proceedings. Me rested his conclusion upon the Explanation to Section 647 of the Code of 1882. By Act

VI, Section 4 of 1892 an Explanation was added to Section 647. This Explanation was enacted on account of the view held by the High Courts of

Allahabad and Bombay that Section 647 corresponding to Section 141 of the present Code applied to execution proceedings. The Explanation is

in these terms: "" This section does not apply to applications for the execution of decrees which are proceedings in suits."" The Privy Council held in

Thakur Prasad v. Fakir-ullah ILR (1894) All 106 that independently of the Explanation, Section 647 did not apply to applications for execution

but only to original matters in the nature of suits, such as proceedings in probates, guardianships and so forth. Muthuswami Aiyar, J. held in

Tirthaswami V. Annappaya (1894) 18 Mad 131 that the dismissal of an execution petition did not bar a fresh application for execution. In A.

Balasubramania Chetti and Others Vs. Swarnammal and Another, Benson and Sundara Aiyar, JJ. held that Order 2, Rule 2 did not apply to

execution proceedings. They observe at page 201: "" It could not have been the intention of the Legislature to apply to execution proceedings

provisions laid down with regard to suits only. The procedure to be followed in appeals and execution applications is specifically laid down in the

Civil Procedure Code. Section 141 is intended to apply to other proceedings in Civil Courts, such as probate, etc."" Mr. Justice Ayling and Mr.

Justice Seshagiri Aiyar followed this decision in Somasundaram v. Chokkalingam (1916) 40 Mad 780. In Kajuluri Swami and Another Vs. Sree

Rajah Chintalapati Sooryanarayana Razu Bahadur Garu, Mr. Justice Jackson held that Order 9, Rule 9 did not apply to orders passed in

execution proceedings.

There are several cases which support the contention that Order 9 is applicable to execution proceedings. In Subbiah Naicker v. Ramanathan

Chettiar ILR (1914) Mad 462 , Ayling and Sadasiva Aiyar, JJ. were of opinion that Order 9, Rule 13 applied to execution proceedings. The point

did not directly arise in that case, but the learned Judges held "" 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."" In V.C.T.N. Chidambaram Chetti Vs. Kandasami Goundan (dead) and Another, the point was not decided, though

Oldfield, J. in his referring order refers to the conflicting authorities on the point. The learned Chief Justice observed at page 780: "" I desire to say

that our decision in this case must be taken to be confined to the particular facts of this case, that is to say, that where you have nothing more than

the non-attendance at the hearing of an application to settle the terms of a sale proclamation, the respondent cannot be taken to be estopped by

reason of that non-attendance on the principle of res judicata from thereafter denying the liability of the property to execution."" The decision in Kali

Shettathi v. Shama Rao (1916) 5 L.W. 124 relied upon by Mr. Veeraraghava Aiyar does not help him.For,in the former, the point was not

decided and in the latter Oldfield and Sadasiva Aiyar, JJ. held Order 9 of the CPC did not apply to execution proceedings.

There is a conflict of opinion in the other High Courts also. In Hari Charan Ghose v Manmatha Nath Sen (1913) 41 Cal I Jenkins, C.J. and

Ray, J. held that Order 9, Rule 13, CPC was not applicable to a proceeding under Rules 100 and 101 of Order 21. The learned Chief Justice

after going into the history of Section 647 and the reason for enacting Section 4 of Act VI of 1892 observes: "" But after this alteration in the law,

the Privy Council by a case, Thakur Prasad v. Fakir-ullah (1894) 5 M.L.J. 3 decided on Section 647 as it stood before the Explanation was

added, that the section did not apply to execution proceedings. The purpose of the Legislature in omitting that Explanation was to do away with

that which was shown to be unnecessary by the Privy Council decision and to rely upon the terms of the section as interpreted by the Privy

Council."" This decision is a direct authority for the contention of Mr. Venkatachariar for the petitioner that Rule 13 does not apply to execution

proceedings. A Full Bench of the Patna High Court in Bhubaneswar Prasad Singh v. Tilakdhari Lall 1919 4 Pat L.J. 135 held that Order 9, Rule 9

did not apply to an order dismissing for default an application to set aside under Order 21, Rule 90 a sale held in execution of a decree. In that

case all the cases bearing on the question whether Order 9 applies to execution proceedings are collected. Though the learned Judges do not

discuss in detail all the cases, they give sufficient reasons for their conclusion that Order 9 has no application to execution proceedings. In

Sheonandan Chowdhury v. Debi Lal Chowdhury ILR (1923) Patna 372 it was held that Order 9, Rule 4 of the CPC applied to an application

under Order 21, Rule 100, which had been dismissed for default. With great respect I am unable to follow the reasoning of the learned Judges.

They observe at page 378: "" An application under Order 21, Rule 100, is not an application in execution proceedings, but is an original matter in

the nature of a suit and, in my opinion, the decision of the Judicial Committee in the case cited is an authority for the proposition that Order 9, Rule

4 would apply by force of Section 141 to original matters in the nature of suits."" All matters in execution are governed by Order 21. Order 21 is

headed "" Execution of Decrees and Orders"" and applications under Rules 97, 99, 100 and 101 are applications to the executing Court in the

course of execution. It is difficult to understand why they cease to be proceedings in execution by the mere fact that the applications are made not

by the decree-holder but by other persons. It is the Court which executes the decree following the procedure laid down in Order 21 that entertains

applications under Rules 97, 100 and 101. This view that after sale the proceedings in execution are not strictly execution proceedings is held by

some of the learned Judges of the Calcutta High Court. In Deljan Nichha Bibee v. Hemanta Kumar Ray 19 C.W.N. 758 it was held: "" An

application for setting aside an execution sale is not an application for execution, but in the nature of an original proceeding which is not excluded

from the purview of Section 141 of the Civil Procedure Code. Such application, if dismissed for default, can be restored under Order 9, Rule 9 of

the Civil Procedure Code."" In Bhuban Behary Nag Mazumdar v. Dhirendra Nath Banerji 20 C.W.N. 1203 the same view was held. In Ramappa

Chettiar and Another Vs. Ekambara Padayachi, Venkatasubba Rao, J. held: ""A petition to restore a claim petition, dismissed for default of

appearance of the petitioner, is maintainable and not barred by Order 21, Rule 63, Civil Procedure Code.

When a decree-holder or an auction purchaser is resisted in obtaining possession of Immovable property by a person in possession, he may

make an application to the Court complaining of such resistance or obstruction under Rule 97. If the executing Court is satisfied that the

obstruction was caused by the judgment-debtor or by some other person at his instigation, it shall direct that the applicant be put into possession of

the property, and, if there is still further resistance, it may make the necessary order to enforce delivery of the property. If the Court is satisfied that

the resistance or obstruction was occasioned by any person other than the judgment-debtor claiming in good faith to be in possession of the

property on his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the

application. (Rule 99). Where any person other than the judgment-debtor is dispossessed of Immovable property by the holder of a decree for

possession or by the auction-purchaser, he may make an application to the Court complaining of such dispossession. If the Court is satisfied that

the applicant was in possession of the property on his own account or on account of some person other than the judgment-debtor, it shall direct

that the applicant be put in possession of the property. Rule 103 gives the right to the person against whom an order is made under Rules 98, 99 or

101 to institute a suit to establish the right which he claims to the present possession of the property, but, subject to the result of such suit, if any,

the order shall be conclusive. In considering the question whether the general provisions of the Code apply to execution proceedings, we must not

overlook the fact that a right of suit is given under Rule 103 to persons against whom an order is passed. In the case of parties to the decree an

appeal is provided u/s 47 of the CPC and in the case of persons who are not parties to the decree, against whom an order is passed in execution,

and in the case of the decree-holder or auction purchaser against whom an order is passed in favour of persons not parties to the decree, a suit is

provided. In the face of the clear wording of Rule 103 it is difficult to understand why any proceeding after the property is brought to sale should

be considered as something different from execution proceedings under Order 21. On a careful consideration of all the cases I have no hesitation in

holding that proceedings under Rules 97, 98, 99, 100 and 101 are execution proceedings and therefore Order 9 does not apply to them. The

order of the District Munsif setting aside an ex parte order was passed without jurisdiction.

The Civil Revision Petition is allowed and the order, dated 30th November, 1922, is set aside and that dated 26th October, 1922, is restored

with costs throughout.

Waller, J.

I agree and have nothing to add.