Sukan Mahton and Others vs Bansidhar Sukul and Others

Shearer, J.—This is an application for the restoration of an appeal which as against two of the respondents was dismissed for default in prosecution. The order dismissing the appeal as against these respondents was made on 7-2-1944, and it was not until 1-12-1944, that this application was made. It is clear that it would not have been made even then but for the circumstance that, in the interval, the appeal had come on for hearing and it had been contended that, as it had already been dismissed as against two of the respondents it could not proceed as against the other respondents. Mr. Rai T.N. Sahai, for the respondents, contends that the application is barred by limitation, the application being one under Order 41, E. 18, Civil P.C., and the Article of the Limitation Act applicable to such an application being Article 168. Mr. Prem Lall, for the appellants, concedes this but suggests that, (sic) the Court may restore the appeal (sic) of its inherent powers u/s 151 of (sic) Code. The scope of Section 151 was considered by a (sic) all Bench of the Madras High Court in Neelaveni v. Narayana Reddi AIR 1920 Mad. 640 in which the circumstances were analogous to those with which we have to deal here.. Seshagiri Ayyar, J. at page 105 of the report there said:

Moreover, I am clear that Section 151 must be construed not as empowering a Court to exercise power which it never possessed, but as preserving to it those powers which it has been in the habit of exercising and which by an oversight or by failure to specify have not been particularized in the statute. Section 151 has been introduced for the simple reason that no Code can exhaustively deal with the procedure for exercising every power which a Court of Justice is competent to exercise; and the language of the section shows that it should be availed of only where a power which has been exercised has not been provided for in the Code.

I respectfully agree with these observations. I have been unable to find that, in circumstances similar to those with which we have to deal here, this Court has ever exercised its inherent powers to restore an appeal, still less, that it has been in the habit of doing so. In my opinion, the appellants are not entitled to have the appeal restored unless they can show that Order 41, Rule 19 of the Code applies and admittedly it does not apply here. In support of the view I take I may also refer to Mt. Janat v. Sayed Kamilshah AIR 1920 Sin 34. The application must, in my opinion, be dismissed. There will, however, be no order for costs.