Patna High Court
Rani Krishnawati vs Sureshmohan Thakur And Anr. on 3 November, 1973
Equivalent citations: AIR1974PAT327, AIR 1974 PATNA 327, 1974 BLJR 219 ILR (1974) 53 PAT 71, ILR (1974) 53 PAT 71
Author: N.L. Untwalia
Bench: N.L. Untwalia
ORDER
1. These two civil revisions between the same parties have been heard together and are being disposed of by a common judgment.
2. The decree-holders are opposite parties in both the Civil Revision applications. In two money suits, they had obtained two money decrees against the husband of the petitioner. The decrees were of substantial amounts of several lakhs of rupees. Both the decrees were put in execution in two different execution cases. Both the execution cases were earlier dismissed for default. Thereafter, in the year 1962, two fresh execution cases were filed being Execution Cases Nos. 120 and 121 of 1962. At some stage of the execution proceedings, the husband of the petitioner died and the petitioner was substituted as a legal representative of the judgment-debtor. On the 30th January, 1964. she filed an objection that most of the properties were her personal properties and were not liable for payment of the decretal dues against her husband. Two miscellaneous cases started under Section 47 of the Code of Civil Procedure were allowed, and rnotl of the properties were released from attachment. Tt appears that some properties were in possession of a receiver and a dispute cropped up in regard to them also. From the order of the Execution Court dated the 14th June. 1966 passed in the miscellaneous cases, Miscellaneous Appeals Nos. 234 and 236 of 1966 were filed in this Court, and we were informed at the Bar that the disposal of those miscellaneous appeals is awaiting the disposal of these two civil revisions. But what is, however, to be pointed out at this stage is that no stay order was obtained by the decree-holders who had filed the said miscellaneous appeals staying further proceeding in either of the Execution Cases 120 or 121 of 1962 2-A. After the passing of some order in the two execution cases on the 23rd December, 1966, disposing of some contentious matters between the decree-holders and the receiver, the further orders passed in both these execution cases on the 23rd December, 1966, were on identical lines. The terms of the orders were:
"The miscellaneous case having been disposed of the D. Hr. is directed to take steps for fixation of valuation by 12-1-67."
The 12th January, 1967, was declared to be a holiday. The execution cases were put up before the learned Subordinate Judge, namely, the Execution Court, on the 16th January. 1967. The orders recorded in the two execution cases on this date are also in identical terms, and they read as follows:
"12th being holiday, record put up today. D. Hr. applies for time to take necessary steps in the case. To 30-1-67, for proper steps in aid of the ext. case."
3. Time petitions were filed again in both the cases on the 30th January, 1967, on behalf of the decree-holders. The cases were adjourned to the 27th February, 1967. On this date, time petitions were filed on the ground that the appeals against the order of the Execution Court had been filed in the High Court. Thereafter, on several dates, no pairvi was done on behalf of the decree-holders and the execution cases were adjourned from time to time on about 20 dates. On the 9th September. 1968. orders were recorded in the two execution cases asking the decree-holders to bring stay order or to take proper step in the case by the 20th September, 1968. Even thereafter, no steps were taken by the decree-holders, nor any stay order was obtained from this Court in any of the miscellaneous appeals. After adjoining the two execution cases for about a dozen times again, ultimately they were dimissed for default by order dated the 15th April, 1969, in these terms:
"D. Hr. has not taken any step though sufficient time has been given. Let the execution case be dismissed for default."
4. On the 14th May, 1969, the decree-holders filed two petitions under Section 15) of the Code of Civil Procedure (hereinafter called the 'Code') invoking the inherent jurisdiction of the Court for recalling the orders dated the 15th April, 1969, passed in the two execution cases dismissing them for default. The petitioner contested those applications. The Court below has allowed the applications of the decree-holders and restored the execution cases to their file. The Judgment-debtor has come up in revision.
5. Both these revisions were placed for hearing before a learned Single Judge of this Court. The learned Single Judge doubted the correctness of the decision of this Court in Ram Narain v. Ramdhan Singh, AIR 1924 Pat 274 and found some observations in the decision of this Court in Babui Ritu Kuer v. Alakhdeo Narain Singh, 4 Pat LJ 330 = (AIR 1918 Pat 67) to say that an execution case dismissed for default cannot be restored under the inherent power of the Court. The learned Judge was, therefore, pleased to refer these two civil revisions for hearing by a Division Bench. Thus, they came up before us.
6. It is not necessary to finally decide in this case as to whether the inherent power of the Court can be invoked for restoration of an execution case dismissed for default. If the dismissal has been due to a mistake of the court, it goes without saying that inherent power will, always be exercised for rectification of the mistake of the court, and no party can be made to suffer for no fault of his. A question of some difficulty arises when inherent power of the Court is invoked for restoring an execution case dismissed for default making out sufficient cause for restoration; in other words, making out a case that the decree-holders were prevented by sufficient cause from appearing or taking any step in the execution case and, therefore, the case should be restored. In such matters, if a fresh execution is not barred, a view has been taken in some of the decisions that the application for restoration can be treated as a fresh application for execution. If, however, the execution was barred by the twelve years' rule of limitation engrafted in Section 48 of the Code, then an application for restoration could not be entertained as a fresh application for execution. It may merely be mentioned here, although it is of no consequence in this case, that Section 48 of the Code has been repealed by Section 28 of the Limitation Act. 1963. I think in a proper case there should not be any difficulty in taking a view that if an application for fresh execution would be barred under any law of limitation, then a restoration application for restoring the last execution case dismissed for default would be maintainable. An order dismissing an execution case for default is not appealable. The remedy of filing fresh execution being barred, the de-
cree-holder will be left with no other remedy under the Code except of invoking the inherent jurisdiction of the Court for restoring the execution case dismissed for default. It is, however, plain that in such a case a very good and sufficient cause will have to be established for getting the execution case restored. In the instant case, treating the applications filed by the decree-holders under Section 151 of the Code for restoration of the two execution cases dismissed for default as being maintainable, it has to be seen whether the order of the Court below is sustainable. A contrary view expressed in the case of Babui Ritu Kuer (4 Patna Law Journal 230) has been expressed per incurium and does not seem to be the view of the Bench so as to be binding on other Division Bench.
7. The learned Subordinate Judge in these two Miscellaneous Cases Nos. 19 and 20 of 1969 filed under Section 151 of the Code recorded the following findings in his impugned order dated the 14th December, 1970:
(1) That the decree-holders or their agent had no knowledge of the orders passed in the execution cases directing them to get valuation fixed nor of the order to bring any stay order from the High Court.
(2) The decrees are for very substantial sums of money, and "there is no doubt that the decree-holder had shown some negligence".
(3) The decree-holders. had given valuation of each item of the talika and the judgment-debtor had not objected to the valuation. Therefore, the court should have called upon the decree-holders to adduce evidence in support of the valuation, but no such order was passed. In such circumstances, it has been held that in as much as fresh execution would be barred by limitation, so if the restoration applications are allowed, there will be no prejudice to the judgment-debtor.
8. The court below has ultimately allowed the two restoration applications on payment of certain amount of cost, again expressing the view that the decree-holders have also been guilty of some laches.
9. In my opinion, the judgment of Ross, J., sitting single, in AIR 1924 Pat 274 does not lay down any law. If it can be said to have laid down any law, I respectfully say, the same was not correctly laid down. If no sufficient cause was found to restore the suit, then there was no question of exercise of inherent powers of the Court for doing Justice between the parties. It was not a mistake of the court. The party had to prove sufficient cause, otherwise the matter remained within the region of the mistake of the party. Inherent power is not meant to be exercised for doing Justice after rectifying the mistakes of the parties which are not fit to be rectified in law. Law cannot be different for suits and cases involving substantial claims from that which is applicable to the case of the small claims. It was wrong to say, if I may say so with very great respect to the learned Judge, that there was no prejudice to the opposite party restoring a suit or a case without sufficient cause, because it has affected the vested right of the other side and it cannot be so lightly affected.
10. The execution cases were obviously for execution of the decrees based upon the loans advanced by the money lender. The provisions of Section 13 of the Bihar Money-Lenders (Regulation of Transactions) Act, 1939 were attracted. It was not a case where recourse could be taken to the procedure prescribed under Order 21, Rule 66 of the Code as it stands under the Patna Amendment. Under Section 13 of the Bihar Money-Lenders (Regulation of Transactions) Act, 1939, it was the duty of the Court to estimate the value of the judgment-debtor's property and to see what portion of it was to be sold. The Court was not to accept the value given by the decree-holders without being satisfied about its correctness. When in its order dated the 23rd December, 1966, the Court below directed the decree-holders to take steps for fixing the valuation, it did direct them to adduce their ex parte evidence in support of the valuation given by them. They did not point out to the execution court, nor did they make any enquiry from it that they had not to take any step or what step they had to take. On several dates, they filed time petitions for taking steps. Thereafter they defaulted. They did not bring any stay order from the High Court. The orders dated the 23rd December, 1966, must be presumed to have been known to the decree-holders, because in pursuance of that order time petitions were filed. It was not the duty of the court to communicate each and every order to the lawyers for the decree-holders or to their agent. It was for the lawyer to ascertain what orders had been passed in the execution cases on the dates fixed. It was not the duty of the Court to ask the decree-holders to bring stay orders from the High Court and the execution court was not obliged to wait until stay orders were obtained. In my opinion, the court below his wrongly exercised its jurisdiction on the basis of the decision of this Court in Ram Narain v. Ramdhan Singh, AIR 1924 Pat 274. In absence of any sufficient cause, the court below had no jurisdiction to restore the execution cases, nor did the cases warrant exercise of inherent powers of the court for correction of any mistake of the court. That being so, it is clear that the orders of the court below suffer from an infirmity of the kind which will justify the exercise of revisional jurisdiction of this Court under Section 115 of the Code.
11. For the reasons stated above, both these civil revisions are allowed and the orders of the court below passed in Miscellaneous Cases Nos. 19 and 20 of 1969 are set aside. In the circumstances, there will be no order as to costs in either of the civil revisions.