Thoma v. Parameswara Panicker — 1954 DIGILAW 202 (KER)

Judgment :- 1. The Second Appeal relates to a matter in execution. The decree in the case was passed on 28.8.1110 by the Vaikom Munsiff's Court. It allows the decree-holder to redeem and recover possession of the decree schedule property on depositing in court a certain amount for payment to the defendants and also to recover costs and future michavaram and other dues from the date of suit. The original decree-holder applied for execution of the decree on 6.4.1115 by E.P. No. 596 of 1115. To this application the second defendant filed an objection petition, C.M.P. No. 11857, on 26.6.1115. The suit was filed in 1110, and the amount which the plaintiff was directed by the decree to deposit in court for payment to the defendant for allowing recovery of possession of the property was the balance of the mortgage amount after setting off against it the arrears of michavaram and other dues. The objections raised by the second defendant in C.M.P. No. 11857 to the execution of the decree were, that he had purchased the equity of redemption in 1105, long before the institution of the suit, that on account of illness he was unable to contest the suit, that after his recovery he and certain mediators informed the decree-holder about his purchase of the equity of redemption and the true state of affairs, that she then promised not to execute the decree and to have it struck off after a settlement according to the true state of affairs, and that the decree-holder was not entitled to execute the decree in contravention of the agreement between them. It was prayed in the objection petition that the execution of the decree should be stayed and the suit struck off. On receipt of this objection petition the court posted it to 12.7.1115 for examination of the defendant and evidence, if any. But before that date, the case was transferred on 2.7.1115 from the Vaikom Munsiff's Court to the Shertalai Munsiff's Court on account of changes made in their territorial jurisdictions. After the transfer, the records were received in the Shertalai Munsiff's Court on 15.8.1115, and when the case came up before that court for evidence on 12.12.1115 the decree-holder was not present in court. The second defendant appeared and was examined on 12.12.1115. After the transfer, the records were received in the Shertalai Munsiff's Court on 15.8.1115, and when the case came up before that court for evidence on 12.12.1115 the decree-holder was not present in court. The second defendant appeared and was examined on 12.12.1115. Since the learned Munsiff considered that the omission of the decree-holder to appear in court on 12.12.1115 might be due to want of notice about the objection petition and the posting for evidence, he ordered the second defendant to give notice to the decree-holder about C.M.P. No. 11857. The notice issued in pursuance of the order on 12.12.1115 was not personally served on the decree-holder. After substituted service of that notice by affixture, the case again came up before the Shertalai Munsiff's Court on 14.1.1116 for evidence, and on that date the second defendant's objection petition, C.M.P. No. 11857, was allowed by a short order which reads as follows: "The plaintiff does not appear in spite of notice. The defendant swears in terms of his objections. This is allowed as it is unopposed". On the next day, 15.1.1116, the execution petition of 6.4.1115, E.P. No. 596, was also struck off. Subsequently, on 6.7.1119 the original decree-holder and one Parameswara Panicker who claimed to be her assignee filed a joint execution petition E.P. No. 851, praying that the assignee might be brought on record as the additional second plaintiff and then allowed to execute the decree in the manner stated in that petition. After notice to defendants 1 and 2, the assignee was impleaded as additional second plaintiff on 28.7.1119 in pursuance of this execution petition. In E.P. No. 851 no mention was made about the order of 14.1.1116. Therefore, on 5.8.1119 the court ordered the assignee-decree-holder to file a statement as to whether the order on 14.1.1116 would affect his right to execute the decree, and for failure to file the statement and it struck off E.P. No. 851 on 19.10.1119. On 13.11.1119 the assignee-decree-holder applied for restoration of the execution petition, E.P. No. 851, struck off on 19.10.1119, but before that application could be disposed of the case was re-transferred to the Vaikom Munsiff's Court on 24.2.1120 on account of new changes made in the territorial jurisdictions of the two courts. Consequent on the re-transfer, the case came up before the Vaikom Munsiff's Court on 10.6.1120. Consequent on the re-transfer, the case came up before the Vaikom Munsiff's Court on 10.6.1120. On 29.3.1121 the Vaikom court allowed the restoration application and restored E.P. No. 851 to the file renumbering it as E.P. No. 345 of 1121 of that court, i.e. the Vaikom Court. After the restoration the Vaikom court also passed an order calling upon the assignee-decree-holder to file a statement as to whether he could execute the decree in the face of the order of 14.1.1116. Thereupon, on 26.4.1121, the assignee-decree-holder filed a petition, C.M.P. No.8208, under S.115 and 0.45 R.(1) of the Travancore Civil Procedure Code, corresponding to S. 151 and 0.47 R.(1) of the Indian Civil Procedure Code, praying that the ex-parte order passed on C.M.P. No. 11857 of 1115 on 14.1.1116 might be vacated and that C.M.P. No. 11857 might be enquired into afresh and disposed of. He also filed his objections to C.M.P. No. 11857. By an order passed on 4.3.1126 corresponding to 21.10.1950, the Vaikom court allowed C.M.P. No. 8208 and dismissed C.M.P. No. 11857. From the order of 21.10.1950 the second defendant filed an appeal in the Alleppey District Court, and in that appeal the Temporary second judge of the Alleppey District Court confirmed the Vaikom Munsiff's Court order of 21.10.1950 in so far as the said order allowed C.M.P. No. 8208 and vacated the order dated 14.1.1116 on C.M.P. No. 11857 and set aside the order of 21.10.1950 in so far as it dismissed CMP No. 11857. By the appellate order, the C.M.P. No. 11857 was remanded to the Munsiff's Court with the direction that it should be investigated into afresh and disposed of again. This second appeal is filed by the second defendant against the above appellate order of the Temporary Second Judge. 2. It was strenuously contended by the appellant's counsel that C.M.P. 8208 filed by the assignee-decree¬holder on 26.4.1121 is not maintainable. According to him, C.M.P. No. 11857 is either an application for restoration made under 0.9 R.13 C.P.C. or is an application for review made under 0.45 R.(1) of the Travancore Civil Procedure Code, corresponding to 0.47, R.(1) of the Indian Civil Procedure Code. According to him, C.M.P. No. 11857 is either an application for restoration made under 0.9 R.13 C.P.C. or is an application for review made under 0.45 R.(1) of the Travancore Civil Procedure Code, corresponding to 0.47, R.(1) of the Indian Civil Procedure Code. He contended that as an application for restoration it was not maintainable since 0.9 R.13 C.P.C. is not applicable to proceedings in execution and that, viewed as an application for review either, it is not maintainable, since the application for review was made not to the learned Munsiff who passed the order of 14.1.1116 but to another Munsiff sitting in an entirely different court. This contention overlooks the fact that C.M.P. No. 8208 does not profess to be an application for restoration filed under 0.9 R.13 C.P.C. In that petition itself the provisions of law under which it has been filed are stated to be S.115 and 0.45 R.(1) of the Travancore Civil Procedure Code, corresponding to S.151 and 0.47 R. (1) of the Indian Civil Procedure Code. There can therefore be no doubt that it was for invoking the inherent jurisdiction of the court under S. 115 of the Travancore Civil Procedure Code (S. 151 of the Indian Civil Procedure Code) that C.M.P. No. 8208 was filed by the second defendant. After a review of the decisions bearing on the subject by the High Courts in India, as well as the Travancore High Court, it has been held in Ouseph v. Varkey,1947 T.L.R. 481, that in proper cases the court has inherent jurisdiction for restoring applications in execution proceedings dismissed for default even though 0.9 R.13 C.P.C. is not applicable to such cases. Inherent jurisdiction is generally exercised to meet the ends of justice and to prevent abuse of the process of court when there is no express provision in the Code applicable to the case. In the present case, the Shertalai Munsiff's Court was not satisfied that the decree-holder had notice of the objection petition, C.M.P. 11857, and the posting for evidence before it on 12.12.1115. It therefore ordered the defendant to give notice of that petition to the decree-holder, and the finding of the first court now is that there was no real service of this notice on the decree-holder, though records have been created to show that substituted service of it had been effected. It therefore ordered the defendant to give notice of that petition to the decree-holder, and the finding of the first court now is that there was no real service of this notice on the decree-holder, though records have been created to show that substituted service of it had been effected. On going through the evidence in the case this finding appears to me to be unexceptionable. It was therefore necessary in the interest of justice to vacate the order of 14.1.1116 allowing the objection petition, C.M.P. No. 11857, and give the decree-holder and persons claiming under her an opportunity to meet the objections urged in that petition. As both 0.9 R.13, C.P.C. and the provision for review cannot be invoked in this case for preventing the abuse of the process of the court and meeting the ends of justice, the only course open to the court was to exercise its inherent jurisdiction under S.115 of the Travancore Civil Procedure Code. The party applied invoking that jurisdiction, and, in my opinion, the court has rightly exercised that jurisdiction. The failure of the assignee-decree-holder to file a statement about the order of 14.1.1116 in pursuance of the order of 5.8.1119 was due entirely to the fact that the order of 5.8.1119 was passed on a date to which the execution petition of 6.7.1119 was not posted. Although the order of 19.10.1119 dismissing the execution petition of 6.7.1119 for the assignee¬decree-holder's failure to file the statement was itself vacated and the execution petition of 6.7.1119 was restored to file the case was again re-transferred to Vaikom soon after the restoration of the execution petition. It is these transfers consequent on changes in the territorial jurisdiction of the courts and the uncertainty as to the court in which the case was pending at a particular time that was largely responsible for the default of the decree-holder. I am, therefore, firmly of opinion that this was a proper case for the exercise of the inherent jurisdiction of the court and that that jurisdiction has been properly exercised in vacating the order of 14.1.1116 and giving the assignee-decree-holder an opportunity to meet the objections raised in C.M.P. No. 11857. 3. It was also contended by the appellant's counsel that the assignee-decree-holder's application of 26.4.1121 is barred by limitation as it has been made more than three years after the order of 14.1.1116. 3. It was also contended by the appellant's counsel that the assignee-decree-holder's application of 26.4.1121 is barred by limitation as it has been made more than three years after the order of 14.1.1116. The law of limitation does not affect the court's exercise of its inherent power, and the fact that the inherent jurisdiction has been exercised on account of the invocation of it by an application of the decree-holder will not make it the less an exercise by the court of its inherent jurisdiction. It has been held in Mrs. Minnie Lal v. Mahadeo Lall, A.I.R. 1949 Patna 112: "Where the court is called on to exercise its inherent power under S.151, that power is not affected by the law of limitation. The mere fact that one of the parties has made an application asking the court to exercise its inherent power will not render the action of the court subject to the rule of limitation". I therefore hold that the application for the exercise of the inherent jurisdiction of the court to vacate the order of 14.1.1116 is not barred by limitation. 4. The result is that the second appeal fails, and it is accordingly dismissed with costs. The memorandum of objections is also dismissed, but without costs. Dismissed.