P L D 1952 Dacca 116 (PLP)

AKBAR, J.

This Rule is directed against an order of the Munsif, 4th Court, Patiya, dated the 15th September 1949, by which he restored an execution case previously dismissed for default. The facts are as follows :‑ On the 10th July 1933, the decree‑holders obtained a decree against the judgment‑debtors for Rs.

800. The decree‑holders put the decree in execution in Money Execution Case No. 57 of 1945 in the Court of the Fourth Munsif, Patiya. The judg ment‑debtor filed an objection under section 47 of the Code of Civil Procedure and the said objection was dismissed by the Appellate Court. On the 8th June 1949, the Munsif on receipt of the record of the execution case from the Appellate Court directed that the decree‑holders should take necessary steps, if any, by the 17th June 1949. As no steps were taken by the decree‑holder the execution case was dismissed for default on the 17th June 1949. Thereafter, on the 15th September 1949, the Munsif on an ex parte application c f the decree‑holders vacated the order passed on the 17th June 1949, and restored the execution case to his file. No notice of the said applica tion was given to the judgment‑debtors. Mr. Nirmal Chandra Nandi, appearing for the petitioners, has argued that the Court should not have exercised its inherent power in this case without giving notice of the application to the judgment‑debtors. He has further contended that a fresh application for execution would now be time‑barred and, as such, the judgment‑debtors have acquired a valuable right under the law, and, therefore, the Court should not override lawful bar of limitation without giving notices to the judgment -debtors. This contention of the learned Advocate appears to me to have considerable substance. In the case of Radha Kissen Chamria and others v. Keshardeo Chamria A I R 1946 Cal. 488 a somewhat similar question came up for consideration before the Court. In that case the Subordinate judge in the exercise of his inherent powers had restored an execution case which had been dismissed for default. The judgment‑debtors contended that the order of dismissal should not have been reversed by the Court in the exercise of its inherent powers. From the judgment in the case, it however, does not appear if notices of the application had been given to the judgment‑debtors. Mukherjea, J. made the following observations at page 491 :‑ A decree‑holder whose case is dismissed for default has his ordinary remedy by way of a fresh application made within the period of limitation. There are authorities which hold that the Court can in the exercise of its inherent powers which are recognised by section 151, Civil Procedure Code, restore an application for execution which was dismissed for default if it is satisfied that such powers should be exercised ex debito justitiae ; Vide 2 Lab. 66 and 11 Lah. 93 ; though there are other decisions which have taken a contrary view ; hide 4 Pat. L J 330 and 50, Mad.

67. In view of the express provisions of section 151, we cannot say that the Court is altogether incapable of exercising its inherent powers in regard to the restoration of execution petitions dismissed for default but at the same time we are of opinion that there must be clear justifying necessity for exercising such extra ordinary powers and the legitimacy of its exercise must be tested with reference to principles which are well‑established by authorities. When the Court passes an order of dismissal inadvertently or without being aware of certain facts which ought to have been brought to its notice, it can certainly correct its own error in exercise of its inherent powers. But there is no justification for the exercise of such power where the dismissal was due primarily to the negligence of a party. It has also got to consider whether the other side has or has not justice on his side or has acquired a valuable right under the law of limitation which it may not be just to override. Further at page 493 the same judge made the following obser vations :‑ "We cannot lay down as a rule of law that a Court could on no account exercise its inherent powers in favour of a particular party if the other side has gained an advantage under the statute of limitation, but, it is perfectly true that this is one of the relevant matters which the Court should take into consideration in arriving at a decision on the point." From the order of the learned Munsif it appears that he has not considered the question of limitation at all. The short order of the learned Munsif passed on the application of the decree -holders acting under section 151, Civil Procedure Code, is as follows :‑ "It appears that the miscellaneous execution case was dismissed for default as no steps were taken by the decree- holders. It is stated that the Pleader did not inform the decree‑holders in time. This contention seems to me very reasonable. Besides the claim appears to be for a heavy amount. In view of the facts and circumstances I vacate the order, dated the 17th June 1949, and the execution case is restored to its file and numbers, Decree‑holders to file requisites by the 20th September 1949". It appears from the above order that the Court has considered the loss which the decree‑holders might sustain if the execution case was not restored, but it has failed to consider the other side of the picture, namely, the right of the judgment‑debtors, This, in my opinion, should have been done. The result, therefore, is that I allow this application, set aside the order of the learned Munsif and send the case back in order that the application under section 151, Civil Procedure Code, may be properly considered after notices to the judg ment‑debtors. The parties will be at liberty to adduce evidence on such matters as the Court considers material. I make no order for costs of this application. A. H. Appeal allowed.