Judgment 1. CHATTERJEE, J. has referred this application under section 115 of the Code of Civil Procedure to the Division Bench on the ground that his Lordship found very great difficulty in reconciling the decision of Harries, C. J., sitting singly, in (1) Bibhabati Devi v. Hrishikesh, (1947) 83 C. L. J. 162, with the decision of the Supreme Court in (2) Keshardeo v. Radhakishen, (1953) S. C. R. 136. In the case before us, the decree-holder Opposite Parties put their decree for arrears of rent against the judgment-debtor Opposite Parties into execution, and at the sale held in that execution case (R. Ex. No. 419 of 1954), the petitioner, a third party, auction-purchased the holding on 11.11.54. An application for setting aside the sale, under section 174 (3) of the Bengal Tenancy Act, was brought by the judgment-debtor Opposite Party No. 1, in December, 1957. This application was allowed ex parte by the learned Munsif, on account of the failure of the petitioner to appear on the date of hearing (24. 1. 59. 2. THEREUPON, the petitioner filed an application for setting aside the said ex parte order by which the learned Munsif had allowed the application under section 174 (3) of the Bengal Tenancy Act and set aside the sale, on the ground that her husband, who used to look after her case, was unable to appear on the date of hearing owing to illness. This petition was labelled under various provisions of the Code, such as Order 9, rule 13 ; Order 47, rule 1 ; section 151. The learned Munsif dismissed this application as riot maintainable. As to Order 9, rule 13 and Order 47, rule 1, he held that those provisions were not applicable since the conditions of their applicability were not present in the petitioner's case. As regards section 151, which was patently wide in its language, the learned Munsif held that since the order allowing the application under section 174 (3) of the Bengal Tenancy Act was appealable under sub-section (5)of that section, section 151 of the Civil Procedure Code could not be invoked to set aside that order as appeal was the only remedy. In coming to this conclusion, the learned Munsif followed the decision of Harries, C. J. in (1) 83 C. L. J. 162, referred to at the outset. In coming to this conclusion, the learned Munsif followed the decision of Harries, C. J. in (1) 83 C. L. J. 162, referred to at the outset. The petitioner has, thereupon, moved this Court under section 115 of the Code on the ground that the learned Munsif has acted illegally and with material irregularity in the exercise of his jurisdiction in dismissing the petitioner's application under section 151 on the ground that it was not maintainable in law. Learned Advocate for the petitioner, has made a two-fold argument in support of this contention on behalf of the petitioner. A. It has firstly been urged that the inherent power under sec. 151 should not be refused even if there is a provision for appeal against the order complained of. Section 151 having been provided for to ensure the inherent power of the court to do substantial justice upon the assumption that the Code is not exhaustive [(3) Hukum Chand v. Kamalanand, (1906) 33 Cal. 927] and it is not possible for a Code of Procedure to anticipate and to "regulate for all time to come so as to make express provision against all inconveniences, which are infinite in number and so that their dispositions shall express all the cases that may probably happen", as observed by Peacock, C. J. in (4) Hurro v. Shoorodhonee, (1868) 9 W. R. 402 (406) F. B., it is natural that the highest courts of the land would be anxious to preserve this great charter to secure real justice in cases where the dictates of their judicial conscience demand that such justice must be done even though the written Code, not being exhaustive, has failed to provide for a situation as that in a particular case before the Court. But even though no court can or should catalogue the circumstances in which section 151 may be properly applied, and differences in shades of opinion are bound to occur so long as section 151 remains on the statute book, several broad propositions may be taken to have been settled by a consensus of judicial opinion: No Court can have an inherent power to do what is expressly prohibited by the Code [of. (5) Rameswar v. Lala, A. I. R. 1925 Pat. 36: (6) Narsingdas v. Mangal, (1883) 5 All. 163 (172) ; (7) Sarat v. Biseswar, (1926) 31 C. W. N. 576]. II. (5) Rameswar v. Lala, A. I. R. 1925 Pat. 36: (6) Narsingdas v. Mangal, (1883) 5 All. 163 (172) ; (7) Sarat v. Biseswar, (1926) 31 C. W. N. 576]. II. But in matters which are neither prohibited nor expressly provided for, the Court has an inherent power to adopt such procedure as is necessary for securing the ends of justice or to prevent abuse of the process of the Court, having regard to the particular facts and circumstances of a case (6) [narsingdas v. Mangal, ibid. ; (3) Hukumchand v. Kamalanand, ibid. ; (8) Nandkishore v. Ramgolam, (1913) 40 Cal. 955 (959) ; (7) Sarat v. Bisweswar, ibid.]. III. Where the Code itself makes an express provision for a particular remedy, the party, who does not avail of such remedy, cannot, as a rule, be allowed to resort to section 151, for, to do so would be to defeat the object and utility of the Code itself. This principle has been laid down by the Allahabad High Court in the Base of (9) Joshi v. Jhinguria (1923) 46 All. 144. Similar view has been taken by the Nagpur High Court in (10) Sheolal v. Jugal Kishore, I.L.R. (1940) Nag. 538 (548) ; (11) Kishna Kumar v. Jawan Singh, A.I.R. 1947 Nag. 236. In this latter case it was held that section 151 could not be resorted to for setting aside an order of dismissal of a suit under Order 11, rule 21, of the Code, inasmuch as it was appealable under Order 43, rule l . As to the Patna High Court, we may refer to (12) Ajadhya v. Phul Kuer, A.I.R. 1922 Pat. 479 and (13) Baikunth v. Siddique, A.I.R. 1958 Pat. 27, to the same effect. It is needless to refer to cases of other High Courts supporting this view. In our own Court, this principle was enunciated in the early case of (3) Hukum Chand v. Kamalanand, (1906) 33 Cal. 927. In that case, Woodroffe, J. observed-"the essence of a Code no doubt is to be exhaustive on the matters in respect of which it declares the law. On any point specifically dealt with by it the law must be ascertained by interpretation of the language used by the Legislature. 927. In that case, Woodroffe, J. observed-"the essence of a Code no doubt is to be exhaustive on the matters in respect of which it declares the law. On any point specifically dealt with by it the law must be ascertained by interpretation of the language used by the Legislature. "in (7) Sarat v. Bisweswar, (1926) 31 C. W. N. 576, where section 151 was applied to restore an application under Order 9, rule 9, which itself had been dismissed for default, the ratio was that there was no express provision in the Code to provide the procedure for setting aside an order of dismissal for default of a proceeding other than a suit or original proceeding of that nature, to which alone section 141 was attracted. In this case, Mukherji, J. observed-"-where there is no provision in the Code expressly providing for a remedy and none which prohibits a remedy being administered and such remedy is called for in order that real and substantial justice for the administration of which it exists, the provision of section 151 may and should be resorted to." 3. A clearer pronouncement was made by a Division Bench in (14) Abdul Jubbar v. Azizur Rahaman, (1937) 41 C. W. N. 893, to the effect that if the Code gives a litigant a right of appeal and he does not choose to exercise it, then he has no right whatsoever to approach the Court and ask the Court to exercise its inherent powers to save him from his own default and carelessness. In (1) Bihabati's case (1947) 83 C. L. J. 162, therefore, Harries, C. J., was merely following a line of previous decisions of this Court. If we now turn to the decision of the Supreme Court in (2) Keshardeo v. Radhakissen, (1952) S. C. A. 775, it would at once be evident that the Supreme Court did not intend to overrule the proposition laid down by the series of High Court decisions just referred to. In fact, that case related to a different state of facts, namely, where there was not only no right appeal but no other specific remedy provided for by the Code, and in this situation, the Supreme Court approved of the application of section 151 by the Subordinate Judge to give relief where injustice had been done to a party by the Judge's own mistake. What had happened in that case was that an execution case was dismissed for default by the Subordinate Judge after rejecting the decree-holder's petition for adjournment for taking steps. The rejection of the petition for adjournment was not communicated to the decree-holder's pleader and the execution case was dismissed forthwith by the same order without giving an opportunity to the decree-holder's lawyer to make any submission which he might possibly make, with reference to the record or otherwise. The decree-holder thereafter presented an application under section 151 to have the order of dismissal set aside and the Subordinate Judge allowed that application and restored the execution case, on the ground that his omission to communicate to the decree-holder's pleader the result of his petition for adjournment before making the order of dismissal was a 'sad omission' which he should, in the ends of justice, rectify, under section 151, because there was no other remedy under the Code and "section 151 is the only section which empowers me to rectify the said omission". This order was set aside by the High Court; the Supreme Court held that the order allowing the application under section 151 was not appealable; nor was it without jurisdiction on the part of the Subordinate Judge to rectify his own mistake and that accordingly, it could not be set aside by the High Court under sec. 115 of the Code, so that the order of the High Court itself was without jurisdiction. 4. WHAT is to be noted in the present context is that the order of dismissal of the execution case which was set aside by the Subordinate Judge under section 151 in (2) Keshardeo's case (ibid.) was not appealable. Nor was order 9, rule 9 available to have it set aside, for, as pointed out in (7) Sarat v. Bisweswar, (1926) 31 C. W. N. 576 (578), it had been settled since the Privy Council decision in (15) Thakur Prasad v. Fakirullah, (1894) 22 I. A. 44, that section 141 of the Code would not operate to attract the provisions of Order 9 and like provisions relating to suite to execution proceedings which were not 'original matters in the nature of suite'. Hence, it is evident that in the case before the Supreme Court, there was no specific provision in the Code providing a remedy for the dismissal for default of an execution case and, in these circumstances, the application of section 151 was considered by the Supreme Court to be right and proper,-the substantive condition for the application of that section having been present, namely, that it was called for the ends of justice. We have, therefore, to conclude that the apprehension of Chatterjee, J., that the view taken by Harries, C. J., in (l) 83 C. L. J. 162 was no longer tenable in view of the Supreme Court decision in (2) Keshardeo's case (ibid.), is not well-founded, and, as we shall presently see, an order allowing, ex parte, and application for setting aside a sale under section 174 (3), which is the subject-matter in the case before us, iand appealable, and that makes all the difference. IV. There may, of course, be extraordinary cases, where the application of section 151 may be justified even though there may be an alternative remedy. One of such exceptional cases may be where the Court itself had committed such mistake or such omission as may itself be termed an abuse of the process of the Court. In such cases, the Court is bound to rectify its mistake according to the maxim-"act us curiae neminem gravabit" (an act of Court shall prejudice no man. In this context, reference may be made to the observations of the Judicial Committee in the case of (16) Debi Baksh v. Habib,, (1913) I. L. R. 35, 17 C. W. N. 829 All 331 (337) P. C, The deputy Commissioner of Oudh had, in that case, dismissed for default a suit for the non-appearance of a plaintiff who was dead before the date of hearing. On an application under Order 9, rule 9, the Deputy Commissioner set aside the order of dismissal and restored the suit. This order was reversed by the Judicial Commissioner. On appeal, the Judicial Committee referred to section 151, even though the Deputy Commissioner had purported to act under Order 9, rule 9,-"quite apart from section 151 any Court may have rightly considered itself to possess an inherent power to rectify the mistake which had been inadvertently made. But section 151 could never be invoked in a case clearer than the present. " 5. But section 151 could never be invoked in a case clearer than the present. " 5. ANOTHER exceptional case may be where fraud has been practiced upon the Court itself to obtain the impugned order [vide (17) Peary v. Sonoo, (1914) 19 C.W.N. 419 ; (18) Akina v. Mohammad, (1940) 45 C.W.N. 392]. In the case before us, however, we need not pursue this branch of the law, since no exceptional circumstances like the above have been pointed out to us in support of the argument that section 151 should have been applied even though the order complained of was appeal-able. B. It is next urged on behalf of the Petitioner that no appeal lies under section 174 (5) from the order complained of inasmuch as there was no decision on contest and the application under section 174 (3) was allowed ex parte on account of the absence of the Petitioner by an array of decisions of this Court. Section 174 (5) of the Bengal Tenancy Act is in these words- "an appeal shall be against an order setting aside or refusing to set aside a sale." this provision is similar to that in Order 43, rule 1 (j) of the Code of Civil Procedure which is as follows:- "an appeal shall lie from the following orders under the provisions of section 104, namely,-an order under. . . . . . rule 92 of order XXI setting aside or refusing to set aside a sale. " 6. AS regards the above provision of the Code it has been held in a number of cases that an order disposing of the application to set aside the sale under rule 89, 90 or 91 of Order 21 of the Code is appealable, whether it is based on a decision on contest or it is allowed ex parte or dismissed for default [(19) Basanta v. Kshirode, (1927) 55 Cal. 616; (20) Ansar v. Bir Sankar, (1929) 33 C. W. N. 392]. It has been held in two Single Bench cases that the same view must be taken as regards the interpretation of section 174 (5) of the Bengal Tenancy Act [(21) Kazibulla v. Humayun, (1938) 42 C. W. N. 612; (22) Debendra v. Gopal, (1937) 42 C. W. N. 128], which is in pari materia and we find no reason to differ from these decisions. It has next been contended on behalf of the petitioner that it was not possible for her to urge in an appeal from the ex parte order that her husband was unable to appear on the date of hearing for sufficient cause nor to meet the ex parte evidence of the applicant upon which the ex parte order had been made unless she was allowed to adduce evidence on her behalf. To this the answer 4s furnished by the Division Bench in (23) Gnanendra v. Prafullananda, (1927) 32 C. W. N. 101, where Mukherji, J., upon a review of the authorities, held that in an appeal from an exparte decree it was open to the appellant to urge that there was sufficient cause for his non-appearance on the date of hearing. For the reasons aforesaid, this application must fail. The Rule is, accordingly, discharged, but without any order as to costs.