1980 PLP 1965 (CLC)

(b) Civil Procedure Code (V of 1908)-- -- O. XXI, r. 58 and S. 151 read with O. IX-Ex pane order, setting aside of-Contention that against order under r. 58 efficacious remedy by way of appeal being open, hence benefit of S. 151 could not be given, held, not correct-Neither evidence of parties concluded nor evidence on record available-Appeal an exercise in futility in circumstances of case-Order IX if not appli cable, S. 151. held, would be applicable for setting aside order of dismissal in default. Abdul Aziz Quraishi for Appellant. Muhammad Farooq for Respondents. Date of hearing : 2nd March, 1980. The petitioner's objection petition under Order XXI, rule 58, C. P. C. was dismissed in default on 8th April, 1977. The petitioner filed an application for setting aside that order but the learned Executing Court dismissed the application on the ground that such an application was not competent since Order XI, rule 10, C. P. C. was not applicable to proceedings in execution under Order XXI, rule '

58. Hence this petition.

2. I could understand this particular point if the matter had been regulated by the old law in which summary proceedings under Order XXI, rule 58 were made conclusive only subject to the right of the aggrieved party to establish the right which he claimed to the property in dispute. The objector thus had a right to file a regular civil suit despite the. dismissal of his application under Order XXI, rule 58 but by the amend ment introduced by the Law Reforms Ordinance, 1972 the executing Court has the exclusive jurisdiction to decide a question raised under Order XXI. rule 58, C. P. C. and no civil suit in regard to such question is competent vide Order XX1, rule 62, C. P. C. By Order XLII1, rule I (ii) the power o appeal has been conferred upon the Court in regard to decision given by executing Court under the provisions of Order XXI, rule

62. The principle as stated by the learned executing Court is no more applicable In fact the provisions of Order XXI, rule 58 are now in the nature of original proceeding as the proceeding of probate or succession and all the procedure of the Code of Civil Procedure would apply to them by virtue of section 141, C. P. C. The principles of authorities holding against the applicability of section 141 to such execution proceeding Alagsaundaram Pillai v. Pichuvier (A I R 1929 Mad. 757), Bhuduneswar Prasad Singh and others v. B. Tilakdhari Lai and others (A I R 1919 Pat. 192), Badeo Prasad Shukul v. Sukhdeo Prasad Shukul (A I R 1929 All. 485), Dwarka Das Babu Ram v. Vaish Flour Mill (A I R 1931 All. 594) and Kaura Lai v. The Punjab National Bank Ltd. (A I R 1926 Lah. 109) are no longer applicable in view of the change of nature of case governed by rules 62 and 103 of Order XXI by the amendment of 1972. I am, therefore not in agreement with the finding of the learned trial Court that the provisions of Order I are not applicable: The learned executing Court has exercised its jurisdiction illegally and with material irregularity by ignoring this important distinctive feature.

3. The learned counsel for the respondent relied on Aziz Salimuddin Hyder v. Farooq Ahmad (P L D 1972 Kar. 68) in which even section 151 was not applied for readmission of an objection petition filed under Order XXI, rule 58, ' C. P. C. which was dismissed in default on the ground that a civil suit was competent. This authority is of no relevance to the changed law.

4. The learned counsel, however, argued that since an appeal is competent as against the order passed under Order XXI, rule 58 whether of dismissal in default or on merits, section 151 cannot be applied. He argued that there being an efficacious remedy op.-n to the petitioner by way of appeal, he could not be given the bene7t of section

151. I have already held that Order IX is applicable but assuming that Order IX is not applicable I would not agree with the argument of the learned counsel that section 151 will be inapplicable. In the absence of any thing on the record to justify the absence of the petitioner on the date of hearing of his application under Order XXI, rule 58, no useful purpose is 11 be served by e filing an appeal., Similarly where the evidence of the parties is not concluded and there is no evidence on merits the case, an appeal would be an exercise in futility. It cannot, therefore, be said that in the circumstances of the case the petitioner had an adequate or more beneficial remedy by way of an appeal. If Order IX is not applicable section 151 will apply and the application for setting aside the order of dismissal in default would be competent.

5. I accept this revision petition with costs, set aside the order of the learned trial Court dated 7th December, 1977 and remand the matter for decision on the application for setting aside the order of dismissal on merits. M. A. K. Petition dismissed.