Siva Subramania Chettiar, minor by natural father and guardian, Veerappa Chettiar vs Adaikkalam Chettiar and Others

Leach, C.J.—The appellant, who is a minor, is the holder of a decree for mesne profits which was passed in favour of his adoptive father on

14th November 1923 in a suit for partition. By his next friend he presented various petitions for execution. The last petition was dismissed for

default on 4th April 1941. On 18th April 1941 his next friend, who at that time was his natural father, his adoptive father being dead, applied for a

review of the order of dismissal. The District Judge granted the application, not as one falling within Order 47, Rule 1, Civil P. C, but because he

felt that the dismissal of the execution application would work great hardship, as it was too late to file a fresh one, and consequently it was,

according to him, a case in which the Court should invoke the inherent powers recognized by Section 151. There were three judgment-debtors.

Two of them filed C. M. A. No. 569 of 1942 and the third, C. M. A. No. 98 of 1943. These appeals were heard by Horwill J. who allowed

them. The present appeals are from the judgment of Horwill J., under Clause 15 of the Letters Patent.

When the application for execution was called on 4th April 1941, neither the appellant''s pleader nor his friend was present. In the petition

asking for a review it was stated that another pleader had applied for an adjournment, but there is nothing on the record to support this and the

District Judge does not make mention of any such application in his order allowing the review. Whether there was an application of this nature or

not does not really matter. The reason given for the non-appearance of the next friend was that his wife had been taken ill suddenly and this had

prevented him from attending Court.

There are several decisions of this Court which say that the absence of counsel is not a ground for review, and it follows that the same principle

must apply when the party is also absent. The decisions of this Court in point are Narayana Chettiar v. Muthu Chettiar AIR 1926 Mad. 980 ,

(Vemareddi) Ramaraghavareddi and Others Vs. Raja of Venkatagiri, and Srinivasam Pillai v. Rukmani Ammal AIR 1928 Mad. 964. The question

whether the inherent power of the Court could be invoked was discussed in (Vemareddi) Ramaraghavareddi and Others Vs. Raja of Venkatagiri,

and it was held that it could not. Obviously in view of the decision of the Full Bench in Neelaveni v. Narayana Reddi AIR 1920 Mad. 640 this

argument was not open. In (Vemareddi) Ramaraghavareddi and Others Vs. Raja of Venkatagiri, the Court also held that a review was

incompetent in view of the limited scope of Order 47, Rule 1, as explained by the Privy Council in Chhajju Ram v. Neki AIR 1922 P.C. 112 and

Nathu Lal Vs. Raghubir Singh and Others . As before Horwill J. Mr. Gopalaswami Aiyengar has dwelt on the judgment of Ramesam J. in T.S.

Subbaraya Devai Vs. R. Sundaresa Devai, . In that case an application for leave to sue in forma pauperis had been dismissed for default after an

application for an adjournment had been refused and the question was raised whether the discovery by the Court later of a reasonable ground for

an adjournment was a good ground for reviewing the order of dismissal. Although he refused to interfere with the order of dismissal in that case,

Ramesam J. considered that the later discovery by the Court of a good ground for an adjournment was sufficient to warrant the granting of an

application for review. These observations cannot be accepted in view of the Bench decisions to which reference has been made; but even if we

were not bound by authority we could not agree with them. As on the authorities an application for review did not lie and as there is no scope here

for the exercise of the inherent power of the Court, the appeals must be dismissed with costs.

The case appears to be one of great hardship and suggests that a case has been made out for an amendment to Rule 15 of Order 9, Civil P.C.,

so that a Court may in suitable circumstances set aside an order of dismissal of an execution petition passed for default of appearance. After this

Court had held in Aruhachalam v. Veerappa Chettiar AIR 1931 Mad. 656, that Order 9 did not apply to execution proceedings, Rule 15 was

inserted in order to make the order applicable in execution proceedings so far as the judgment-debtors are concerned in cases analogous to those

dealt with in Rules 6, 13 and 14. Rule 9 applies to the dismissal of a suit for the default on the part of the plaintiff and at the moment we can see no

room why this rule should not be made to apply to the dismissal of an application for execution for default. Of course, where by default an

execution petition is dismissed and the period of limitation has not expired, the decree-holder can file a fresh application; but where the application

has been dismissed for default and the decree-holder cannot then file a fresh application by reason of the law of limitation, there should be some

provision of law which allows him to get the order of dismissal set aside if he can show that he was prevented by sufficient cause from appearing.