- (1.) The only point that is involved in this Rule is whether an application under section 151 of the Code of Civil Procedure is maintainable for the restoration of the written statement dismissed under Rule 21 of Order 11 of the Code.
(2.) The opposite party, who is the defendant in the suit out of which this appeal arises, failed to discover oath within the period allowed by the court below. On the application of the petitioner under Rule 21 of Order 11 of the Code, the court below by its order no. 37 dated July 16, 1976 struck out of his death. On September 22, 1976, the opposite party filed an application under section 151 of the Code praying for setting aside the said order no. 37 and for restoration of his defence. The court below, after considering the circumstances alleged in the said application explaining the failure of the opposite party to discover on oath, by its order no. 41 dated November 26, 1976 directed that the application would be allowed and the said order no. 37 would be set aside on the opposite party's paying a cost of Rs. 12/- to the petitioner by December 3, 1976. Being aggrieved by the said order no. 41, the petitioner has obtained the instant Rule.
(3.) It is contended by Mr. Anilanda Mukherjee, learned Advocate appearing on behalf of the petitioner that an order passed under Rule 21 of Order 11 being appealable under clause (f) of Rule 1 of Order 43, the application under section 151 was not maintainable. In support of his contention, he has placed strong reliance on a decision of the Supreme Court in Nainsingh v. Koonwarjee, A.I.R. 1970 S. C. 997. In that case, the Supreme Court observed as follows : "The High Court, in our opinion, erred in holding that the correctness of the remand order was opened to review by it. The order in question was made under Rule 23, Order 41, Civil Procedure Code. That order was appealable under Order 43 of that Code. As the same was not appealed against, its correctness was no more open to examination in view of Section 105(2) of the Code which lays down that where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom he shall thereafter be precluded from disputing its correctness. The High Court has misconceived the scope of its inherent powers. Under the inherent powers of Courts recognized by S. 151 C.P. C., a Court has no power to do that which is prohibited by the Code. Inherent Jurisdiction of the Court must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. In other words the Court cannot make use of the special provisions of Section 151 of the Code where a party had his remedy provided elsewhere in the Code and he neglected to avail himself of the same. Further the power under Section 151 of the Code cannot be exercised as an appellate power.";