P L D 1961 (W (PLP)

3. It is contended on behalf of the petitioner that section 141 of the Civil Procedure Code applies only to original matters in the nature of suits and not to applications arising during or in connec tion with suits and, consequently, the provisions of Order IX, rule 9 do not come into play in the case of dismissal of an appli cation under Order I, rule 10 of the Civil Procedure Code. As authority for this view, reliance was placed by Mr. Ata Ullah on Ma Thon Seion ana others v. Ma Bla Yi (A I R 1941 Rang. 201). In that case, a preli minary mortgage decree bad been passed in the suit, and two applications were made by the legal representatives of the deceased plaintiffs which were, however, dismissed in default. The first one was to have themselves brought on the record as legal repre sentatives and the second for passing a final decree. After the dismissal of these applications, the applicant filed fresh appli cations in respect of the two matters instead of applying to have the order of dismissal set aside in each case. The trial Court dis missed the subsequent applications. The learned Judges of the High Court held that the proceedings spoken of in section 647 of the Civil Procedure Code of 1882 (corresponding to section 141 of the present Code) include original matters in the nature of suit such as proceedings in probates, guardianships, and so forth and not those which spring up from a suit or from some other pro ceedings or arise in connection therewith. On this view of the matter, they set aside the order of dismissal of the two applica tions and directed their disposal on merits.

4. Mr. Mazhar‑ul‑Haq, the learned counsel appearing for the respondents, has, how9ver, pointed out that the decision in the Rangoon case proceeds from a misinterpretation of the decision of their Lordships of the Privy Council in the case of Thakur Pershad v. Sheikh Fakir‑Ullah and another (22 1 A 44), which was a case confined only to the question of application of section 647 of the old Code to execution proceedings.

5. In this contention, Mr. Mazhar‑ul‑Haq has sought to fortify himself by reference to a Full Bench decision of the Allahabad High Court in Maha Ram and another v. Harbans (A I R 1941 All. 101). In that case, their Lordships were considering the question as to whether the provisions of Schedule 2 of the Civil Procedure Code were applicable to proceedings in the Civil Courts under section 271 of the Agra Tenancy Act (III of 1926) by virtue of section 141 of the Code and they observed that section 141 referred to all pro ceedings in any. Court of civil jurisdiction and accordingly covered those taken by a Civil Court when the record of a case bad been sent to it by a revenue Court in accordance with section 271 of the Agra Tenancy Act (III of 1926). Thom, C. J., who wrote the leading judgment, analysed at some length the implications of the decision of the Board in Thakur Pershad v. Sheikh Fakir‑Ullah and another and observed as follows :‑ "It is to be remarked that the Board's decision is confined to the question as to whether by virtue of section 647, section 373 is made applicable to proceedings in execution. Their Lord ships decided that it was not. The Board did not decide how ever that section 647 did not apply to proceedings in execution. It is further to be observed that the Board did not purport to give an exhaustive list of proceedings to which section 647 applied. Nevertheless in the latter cases to which we were referred, noteably in Sarat Krishna Bose v. Bisheshwar Mitra 54 Cal. 405 and Basaratullah Mean v. Reazuddin Mean 53 Cal. 679, it was assumed that the Board did give an exhaustive list of the proceedings to which the section did apply, which list could be extended only to proceedings ejusdem generis . . . . . . . In short, their Lordships observed that section 647 includes original matters and not that it includes only original matters. It cannot be inferred from the decision of the Board, therefore, that section 647, which corresponds to section 141 of the Civil Procedure Code of 1908 did not apply to matters which were not original matters in the nature of proceedings in probates and guardianship and so forth. The decision of the Board is based upon the consideration that Chapter XIX of the Code was a self contained chapter of 121 sections devoted to procedure in execution and further that the provisions of section 373, Civil Procedure Code, were inapplicable to execution proceeding, Clearly the Board did not intend to decide that section 647 had no application at all to execution proceedings . . . . . . ."

6. At this stage, other authorities cited at the bar may be briefly noticed. In T. Wang v. Sona Wangdi (A I R 1925 Cal. 812) and Narayan Ram. chandra Ambure v. Bhondiba Tukaram Gavali (A I R 1937 Bom. 111), the only question was regarding the applicability of section 141 to execution proceed ings and the answer was in the negative. In Dharamchand and others v. Sheoranlal and others (A I R 1930 Nag. 188), an application had been made for second personal decree for the balance of the decretal amount such an application was found to be in continuation of the original suit and, therefore, a second application was held to be barred by Order IX, rule 9, Civil Procedure Code, read with section 141 of the Code when the first one had been dismissed in default. In Manakji v. Surojmal (10 I C 705), it was held by the Nagpur Judicial Com missioner's Court that :‑ "Where an application to set aside an order dismissing a suit for default is itself dismissed for default, an application for its re‑admission can be entertained under the provisions of section 141 of the Civil Procedure Code." This view was followed in Kirpa Singh v. Mula Singh (A I R 1919 Lah. 155).

7. Finally, a reference was made to Krishna Rao v. Janaki Ammal and others (A I R 1939 Mad. 681). in that case, the petitioner had, filed an application for leave to sue in forma pauperis, but on the day of hearing, he was absent and his counsel stated that he had no instructions, with the result that the application was dismissed for default. The petitioner then filed an application under Order IX, rule 9 and section 151 of the Civil Procedure Code, to restore the previous application for leave to sue in forma pauperis but the Subordinate Judge dismissed the application for restoration on the ground that there was no question of limitation or res judicata and that the petitioner may renew the pauper petition itself. The High Court held that Order IX, rule 9, read along with section 141 Civil Procedure Cod6 did apply to pauper petitions and although there was a conflict of authority on the question whether the dismissal for default of a pauper petition barred a future petition on the same ground, yet it was clear that if the Court had jurisdic tion to decide a petition under Order IX, rule 9 and section 141, it had a duty to decide such a petition on its merits and could not decline to exercise its jurisdiction merely because there was an alternative remedy.

8. It will be seen that in none of the cases cited at the Bar, the precise question arising in the instant case has been dealt with, but the one which comes fairly close is Ma Than Sein and others v. Ma Hla Yi. There is no doubt that the decision in that case purports to flow from the observations of their Lordships of the Privy Council in Thakur Pershad v. Fakir‑ Ullah and another to the effect that :‑ "Their Lordships think that the proceedings spoken of in section 647 include original matters in the nature of suit such as proceedings in probates, guardianships, and so forth, and not include executions." Although their Lordships of the Full Bench of the Allahabad High Court in Maha Ram and another v. Harbans have taken pains to explain the reasoning and implications of these observations of the Privy Council and to reach the conclusion that, section 141 of the Civil Procedure Code‑is not restricted to original proceedings, yet they were examining that question with reference to proceedings about which they expressed themselves as follows :‑ "The provisions in regard to reference of an issue under section 271 of the Agra Tenancy Act (III of 1926) to the Civil Procedure Code are mandatory. The revenue Court has no jurisdiction in the matter. In so far as that issue is concerned, the Civil Court is a Court of original jurisdiction and in dispos ing of the issue, that Court does not exercise an authority delegated by the revenue Court. The Civil Court is in fact seized of the suit, in which the issue referred to it under section 271 arises and, therefore, is competent to refer the issue to arbitra tion under Schedule 2., Civil Procedure Code." In other words, the proceedings to which their Lordships of the Full Bench ultimately extended the application of section 141 of the Civil Procedure Code were original proceedings in the nature of a suit and not proceedings arising from a suit or in connection therewith.

9. With the greatest respect to their Lordships of the Full Bench of the Allahabad High Court, it seems to me that the trend of authority has been to interpret the dictum of their Lordships of the Privy Council as meaning that section 141 of the Civil Procedure Code is intended to extend the provisions of the Code only to original matters in the nature of suits, which may be pending before any Court of civil jurisdiction. In any case, there is no authority for extending the provisions of section 141, read with Order IX, rule 9, to an application under Order I, rule 10 of the A Civil Procedure Code. On the contrary, there is authority for not extending the scope of Order IX, rule 9 to an application of almost a similar nature, namely, an application for bringing on record the legal representatives of a deceased plaintiff. I am of the view that there are good reasons for not extending the provisions of Order IX, rule 9, read with section 141 of the Civil Procedure Code, to an application made under Order I, rule 10 of the same Code. Reference to rule 10 of Order I of the Civil, Procedure Code would show that the Court has the power at any stage of the suit to substitute or add a plaintiff or to join any party, who is necessary or proper, or to strike off any party, who has been improperly joined. The Court can exercise this power irrespective of the fact whether any party applies to it or not in this behalf. It appears to me that the intention of the rule is that the power may be exercised at any stage and, therefore, it would not be in accordance with the spirit of the rule to impose an artificial restriction in this matter by invoking the provisions of Order IX, rule 9, read with section 141 of the Code. An application under Order 1, rule 10 of the Civil Procedure Code must, there fore, be regarded as a miscellaneous application, which is not an original matter in the nature of a suit and, therefore, not covered by section 141 of the Civil Procedure Code.

10. On this view of the matter, the second application filed by the petitioner for being impleaded in the proceedings pending before the learned Civil Judge was clearly entertainable and should have been decided on merits. It was not necessary for her to apply for restoration of her previous application, which had been dismissed in default. The petition is, therefore, accepted with costs and the learned Civil Judge is directed to dispose of the petition's appli cation under Order I, rule 10 on merits. K. M. A.Petition accepted.