P L D 1972 Karachi 68 (PLP)

Notice of this application was issued to the decree‑holder who resisted the application on the ground that the application was not maintainable in view of the provisions of Order XXI, rule 63, C. P. C. as any order passed whether on merits or in default was final and conclusive unless it was set aside by filing a suit as laid down by the aforesaid rule. It was also pleaded that since an express remedy was provided the inherent power of the Court could not be resorted to. From these objections it is clear that the statement made in the application with regard to the non‑appearance of the counsel at the time when the application under Order XXI, rule 58 was called and dismissed has not been controverted. I may also add that as far as I can recollect in one matter one counsel had appeared before me and bad requested for the restoration of some application which was dismissed in default and I suggested to him to make an application for restoration, but I do not remember whether it was the same matter or not. However, considering the statement made by the counsel in the applica tion as well as the absence of the contest by the other side I am inclined to accept the statement made in the application. Consi dering the inability of the counsel to appear in time there could be no two opinion that sufficient cause for non‑appearance has been made out. Thus the only question which requires consideration is whether the application for restoration of the objections is main tainable and the inherent power of the Court under section 151, C. P. C. can be invoked. It was argued by the learned counsel for the decree‑holder that an order passed under Order XXI, rule 63, was conclusive irrespective of the fact whether the claim petition was dismissed with or without investigation of the claim for any reason including an order made on account of default of the party, and, therefore, it must be taken to be the dismissal of the petition and hence an order made under rule 63 which could only be challenged by way of a suit and not by resorting to the inherent power of the Court under section 151, C. P. C. In support of these contentions the learned counsel quoted some authorities and these are the cases of Laxman Ganesh Shukla v. Baliram Lahanu Patil (A I R 1948 Bom. 187), Nimba Ganba Ghule v. Narayal Paikaiji Kali and another (A I R 1948 Nag. 369), Ambica Prosad Sanyal v. M/s. Soorajmul Nagarmull Firm (A I R 1939 Cal. 620), Cannanore Bank Ltd. v. Pattarkandy Arayanveetill Madhavi (A I R 1942 Mad. 41), Gulab and others v. Mutsaddi Lal (I L R 41 All. 623), Radhomal Pohumal v. Abdul Rahim and others (A I R 1948 Sind 33), Haddu Sahu v. Haji Zamal Noor Muhammad Sahib (A I R 1934 Mad 699.) and Muhammad Kasim Abdul Sathar Sait v. Hajee Rahiman Hajee Ismail (A I R 1950 Tra. 100). Taking up the authorities reported in A I R 1948 Dom. 187, A I R 1948 Nag. 369, A I R 1939 Cal. 62, A I R 1942 Mad. 41 and I L R 41 All. 623 it is not necessary to discuss these authorities in detail but suffice to say that the principle laid down by these authorities is that an order within the meaning of Order XXI, rule 63, C. P. C. need not be one passed after investigation. An application under Order XXI, rule 58, C. P. C. can be dismissed on the grounds that it has been filed after undue delay or the applicant has not taken any further step such as payment of process fee etc. to prosecute the application or has remained absent, or the application may be dismissed after investigation. In all such cases the order will be binding and conclusive on the party as land down by Order XXI, rule 63, C. P. C. unless it is set aside by filing a suit within one year from the date of the order. Of course in all these cases the question of the exercise of the inherent power of the Court under section 151, C. P. C. was not involved. Now turning to the other two authorities reported in A I R 1948 Sind 33 and A I R 1934 Mad. 699, these are directly on the point and support the contentions raised by the learned counsel that the Court cannot have recourse to the inherent power under section 151, C. P. C. to restore the objections dis missed in default under Order XXI, rule 63, C. P. C. In the case reported in A I R 1948 Sind 33 a tonga said to be of the judgment‑debtor was attached and the claim petition which was filed against the attachment was dismissed in default. Subsequently an application was made by the claimant to set aside the ex parte order and this application was allowed and the claim petition was restored to file on 9‑9.42. Later by an order dated 24‑9‑41 the claim of the intervenor was upheld in the absence of the decree‑holder. Against this order the decree -holder filed a revision petition claiming that the lower Court could neither exercise its jurisdiction under section 151, C. P. C. nor could restore the petition under Order IX, rule 13, C. P. C. dismissed on the ground of default as this provision of law was not applicable to the execution proceedings. On consideration of the authorities which had been cited, his Lordship came to the conclusion that the application was not maintainable under Order IX, rule 13, C. P. C. nor the learned subordinate Judge could exercise the powers under section

151. The other authority reported in A I R 1934 Mad. 699 followed the Full Bench decisions reported in 1929 Mad. 737 and 1931 Mad. 656 and it was held that an application under Order XXI, rule 58 was proceeding in execution and hence Order IX, rule 13 did not apply and the Courts had no inherent power to set aside the orders of dismissal in default passed in respect of such applications. In A I R 1929 Mad. 757 the application made under Order XXI, rule 100 was dismissed in default and it was held that neither Order IX, rule 9 applied nor inherent powers under section 151, C. P. C. could be invoked to set aside the ex parte orders as an alternative remedy by way of suit was available under Order XXI, rule 103, C. P. C. In A I R 1931 Mad. 656 the decree‑holder applied for the attachment of the property in execution of the decree and notice was issued. On the date of hearing the ex parte order of attachment was passed in default of appearance. Subsequently an application for restoration was made on the ground that the counsel had only been a minute late in appearing before the Court and the order was passed. This application was dismissed, holding that Order IX, rule 13 did not apply. However; the question of the inherent powers of the Court was not considered. Yet there is the third authority which I have been able to find and this is the case of Pyaram v. Somaram (A I R 1936 Pesh. 115). It is also to the same effect supporting the view that where an objection preferred in execution under Order XXI, rule 58 has been accepted ex parte in the decree‑holder's default, the order accepting the objector's claim is conclusive within the meaning of Order XXI, rule 63 and decree‑holder's only remedy is by way of separate suit. It was further observed that such objections could not be restored and reheard on decree‑holder's application and it would not also be competent for the Court to restore such an order by virtue of its own inherent power under section 151, C. P. C. In this authority a few authorities were considered: On the other hand the learned counsel for the intervenor- applicant urged that in the absence of clear words in Order XXI, rule 63 to the contrary, the jurisdiction of the Court to act as debito justatiae could not be ousted simply because another remedy was also available. In this connection he sought in aid the authority of the Division Bench in the case of Pratap Singh and others v. Ambadas Balaji Lokhande (A I R 1935 Nag. 297). It was held that even though an alternative remedy was available, it would not prevent the Court from exercising its inherent jurisdiction under section 151, C. P. C. if the circumstances of the case required its exercise. It was also observed that an order passed under Order XXI, rule 63 was binding unless set aside by filing a suit but the fact that an order passed was as conclusive as the one passed on merits, did not answer the question whether the former order could not, on a proper cause being shown to restore the application to file, be set aside under section 151, C. P. C. In the above case the authority in the case reported in A I R 1924 Mad. 715 was relied upon although that authority was not only not followed in A I R 1934 Mad. 699 in view of the decisions of the Full Bench in the other two authorities A I R 1929 Mad. 757 and A I R 1931 Mad. 656 but it was also not followed in A I R 1936 Pesh.

115. In connection with the previous authorities of the Madras High Court it was observed as under: "The case in A I R 1934 Mad. 699 supports the applicants to a certain extent. In that case Madhavan Nair, J. dissented from the view taken in A I R 1924 Mad. 715, on the ground that the law laid down therein was no longer good on account of the two subsequent Full Bench decisions of that High Court‑in Alga Sundaram v. Pichuvier A I R 1929 Mad. 757 and Arunachalam v. Veerapa A I R 1931 Mad.

656. According to his Lordship, the Full Bench decisions show that the Court has no inherent powers to set aside an order of dismissal for default passed in respect of an application under Order XXII, rule

58. But even this decision does not go to the extent of saying that the Court cannot resort to its inherent powers to restore an application under Order XXI, rule 58, because of any prohibition therefor in Order XXI, rule 63, C. P. C." With due respect I may say that I am unable to conceive that when a Court has no inherent power either under section 151, C. P. C. or any other provision of law to vacate the ex parte order and restore the application how cart it act otherwise and further in view of the clear dictum that the Court possessed no such in herent power it was unnecessary for the Full Beach to say that resort to inherent power to restore an application under Order XXI, rule 58 was prohibited under Order XXI, rule 63, C. P. C. If there is no inherent power it automatically follows that the other remedy which is available must be resorted to and the availability of that remedy would operate as a bar to the exercise of the inherent power which cannot be exercised. In the aforesaid Nagpur authority it was also laid down on the basis of the authorities reported in A I R 1933 Nag. 176, A I R 1921 Lah. 67 and A I R 1939 Lah. 223 that despite the fact that another remedy was available it did not debar the Court in every case from exercising its inherent power. This principle clearly runs counter to what has been laid down in other authorities that the order passed under Order XXI, rule 63 is conclusive and no inherent power existed under section 151, C. P. C. to set aside another ex parte order passed under the rule and that order can only be challenged by way of suit. In this connection I would like to refer to the Full Bench decision in the case of Muhammad Kasim Abdul Satar Sait v. Hajee Rahiman Haji Ismail wherein it was observed that it is well established proposition that inherent jurisdiction must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case in question, such provisions should be followed and the inherent jurisdiction, should not be invoked. It was further observed that a Court cannot make use of the special provisions of the section where the applicant has remedy provided elsewhere in the Code and has neglected to avail himself of it. Apart from this, A I R 1921 Lah. 67 and A I R 1939 Lah. 223 are clearly distinguishable and the propositions laid down is not applicable to the present case. In the former case the question of restoration related to the execution application dismissed in default and the alternative remedy is only by way of appeal and not suit. In the latter case the objection petition made under Order XXI, rule 90, C. P. C. for confirming the sale was passed. In such a case also the suit is barred by the provisions of Order XXI, rule 92, C. P. C. It is thus clear that in both the cases the alterna tive remedy was by way of appeal. These authorities, therefore, hardly provide the necessary support to the proposition, laid down in the aforesaid Nagpur authority under review. The exercise of the inherent powers of the Court derived from section 151, C. P. C. was not considered in relation to the order passed under Order XXI, rule

63. Considering the nature of the proceedings in those authorities the maintainability of the application for restoration under section 151, C. P. C. despite the availability of the remedy by way of appeal, was found to be unexceptionable. There exists a clear distinction between an appeal and an application for .restoration and the grounds for interference in each case are distinct. The grounds which can be raised in support of the restoration of an application or objections dismissed in default of the appearance of the party cannot be agitated in an appeal against the ex parse order unless an application is made to seek an adjournment on the ground of the absence of the party for some unavoidable cause and the ex parte order resulting in dismissal is passed in consequence of the refusal to adjourn the case. The party aggrieved by the order passed under Order XXI, rule 63, C. P. C. gets full opportunity by filing the suit to press its claim which was agitated under rule 58, and therefore, no prejudice is caused if the ex parte order passed under' rule 63 is not set aside on an application made in that behalf, whereas this is not possible in an appeal against the ex parte order which has to be decided on the material available on the record of the lower Court or in addition to any additional evidence which may be brought on record under Order XLI, rule 27, C. P. C. Thus there is difference in effect of the alternative remedies provided by way of appeal and by way of suit If the proposition laid down by the authorities is considered in the light of these considerations, the error of the view entertained by Nagpur High Court, with due respect, would become apparent: On consideration of the authorities referred to above the ratio decidendi if an order has been passed under Order XXI, rule 63 irrespective of the fact that it is an ex parte order without investigation of the claim the Court cannot exercise its inherent power under section 151, C. P. C. to set aside that order but the only remedy available to the party aggrieved of that order is to file suit to establish his claim. With this view I respectfully agree. In the result the application is dismissed. S.A.H. Application dismissed.