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2000 DIGILAW 209 (KER)

Anandavally Amma v. Federal Bank Ltd. ,

2000-03-31

K.T.THOMAS, P.K.BALASUBRAMANYAN

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Judgment :- P.K. Balasubramanyan, J. This appeal filed under O. XLIII R. 10) of the Code of Civil Procedure by judgment debtor No. 2 challenges the dismissal by the executing Court of an application filed by him under O. XXI R.90 of the Code of Civil Procedure. The dismissal was on the ground that the judgment debtor was not ready to proceed with the enquiry. The order reads: "Petitioner is not ready. Hence dismissed". 2. According to us, the dismissal is one for default and the remedy of the appellant lies in moving the executing court under O. XXIR.106 of the Code of Civil Procedure. No appeal lies under O. XLIII R. 10) of the Code against such an order. This view was taken in Velappan v. Sahasranaman (1978 KLT 806), wherein it was held that an order dismissing an application under O. XXI R.90 of the Code for default is not appealable under O. XLIII R. 10) of the Code. We see no reason to differ from that statement of the law, When we pointed out this aspect to counsel, he submitted that the appeal may be returned to him so that he can file a Civil Revision Petition against the order of the executing court. 3. When a suit is dismissed for default, the plaintiff has to move the Court that dismissed the suit, under O. IX R.9 of the Code of Civil Procedure. The plaintiff cannot file an appeal since, a dismissal for default is not a decree, going by the definition of 'decree' contained in S.2(2) of the Code of Civil Procedure. Nor can the plaintiff file a Revision against the order dismissing the suit for default, since the plaintiff has a substantive right by way of an application under O. IX R.9 of the Code of Civil Procedure for restoration of the suit. That the right to move an application under O. IX R.9 of the Code is a substantive right is clear from State of Kerala v. Joseph, 1989 (2) KLT 561. It has also been held that the only remedy available to the plaintiff is to apply under O. IX R.9 of the Code. (See Muhammed v. Narayani,1991 (2) KLT 287). 4.0. IX was held to be not applicable to execution proceedings in view of the decision in Bhushayya v. Ramakrishnayya (AIR 1962 SC 1886). It has also been held that the only remedy available to the plaintiff is to apply under O. IX R.9 of the Code. (See Muhammed v. Narayani,1991 (2) KLT 287). 4.0. IX was held to be not applicable to execution proceedings in view of the decision in Bhushayya v. Ramakrishnayya (AIR 1962 SC 1886). This was because, it was held that S.141 of the Code applies only to original proceedings. This view was earlier taken by the Privy Council while construing the corresponding provision (S.647 of the Code of 1882) in Fakir-ullah v. Thakur Prasad (22 Indian Appeals 44). It was in that context that O. XXI Rr.105 and 106 were inserted by some High Courts including Kerala. These provisions were adopted by the Code of Civil Procedure Amendment Act of 1976 and incorporated into O. XXI of the Code. The result therefore is that a person whose application under any of the provisions of O. XXI is dismissed for default, has a substantive remedy by way of an application under O. XXI R.106 of the Code of Civil Procedure. Hence, it is not open to a judgment-debtor whose application under O. XXI R.90 of the Code has been dismissed for default, to invoke the jurisdiction of this Court under S.115 of the Code of Civil Procedure seeking to have the order of dismissal for default revised. So, We are not in a position to accede to the submission that this Court can exercise its revisional jurisdiction in this case to revise the order of dismissal. We dismiss the appeal without prejudice to the right of the appellant to move the executing court under O.XXI R.106 of the Code of Civil Procedure.