DWARKA PRASAD Vs. CHANDRA SHEKHAR DUBEY

JUDGEMENT

(1.) This application by the plaintiff decree-holder under Section 115 of the Code of Civil Procedure is directed against the order dated 13-1-1966 restoring Miscellaneous Case No. 27 of 1964. which was dismissed on 11-12-1965.

(2.) The facts giving rise to this application are these: The plaintiff petitioner obtained a compromise decree against the defendant opposite party on 25-5-1962 in Money Suit No. 256 of 1960, and certain instalments were fixed with the condition that if the opposite party would fail to pay any one of the instalments, the petitioner would be entitled to execute the decree for the entire claim. The opposite party made default in the payment of the instalments and the petitioner filed Execution case No. 260 of 1962 against the opposite party for executing the decree. The opposite party filed a petition for the grant of instalments, but it was dismissed for default. The opposite party filed another application with a similar prayer, but this also was rejected on 9-1-1964. The petitioner then applied for warrant of arrest of the opposite party, but the latter filed an application on 22-2-1964 alleging that he had paid a sum of Rs. 3,000 to the petitioner and he wanted that the said payment should be recorded in accordance with the provisions of Order 21, Rule 2 of the Code of Civil Procedure. This application was registered as Miscellaneous Case No. 27 of 1964. On 11-12-1965. the opposite party filed an application in the said Miscellaneous case for time on the ground of his illness, but the Court rejected that petition called out the Miscellaneous case and dismissed it by order dated 11-12-1965 as no one appeared for the opposite party On the same date the opposite party filed an application for restoration of the Miscellaneous case and recalling the order of dismissal on the ground that his lawyer was actually giving evidence in another Court when the Miscellaneous case was called out and by the time the lawyer turned up the order of dismissal of the Miscellaneous case had already been passed. The petitioner filed a rejoinder to this petition. The learned Munsif heard this petition and he by his order dated 13-1-1966. restored the Miscellaneous case to its original file and recalled the Miscellaneous case to it original file and recalled order dated 11-12-1965. Being aggrieved by this order the petitioner has filed this application in revision in this Court.

(3.) Learned counsel for the petitioner urged, in the first instance that the order dated 11-12-1965 dismissing the Miscellaneous No. 27 of 1964 was an appealable order and hence the remedy of the opposite party was to file an appeal against the order and not a petition under Section 151 of the Code of Civil Procedure to recall the order of dismissal. He has referred to Raghubir Narayan Singh v. Soti Lal Sahu. AIR 1933 Pat 634 ft was held in that case that an order refusing a certificate of payment was appealable The contention was that an execution case was pending against the judgment-debtor opposite party and the allegation of the opposite party that he had made certain payment outside Court amounted to an objection to the execution of the decree within the meaning of Section 47 of the Code of Civil Procedure. The Court refused to grant a certificate of payment and dismissed the Miscellaneous case and that order of dismissal was. in fact the order of dismissed of the objection under Section 47 of the Code of Civil Procedure which was appealable as a decree. This contention must be accepted as correct to this extent that the order dated 11-12-1965 dismissing the Miscellaneous case was appealable, But the question remains for consideration at to whether the Munsif could exercise his inherent powers under Section 151 of the Code of Civil Procedure to recall the order of dismissal and I would deal with this aspect in the following paragraph.