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High Court Of Calcutta
G. N. RAY, NIRENDRA KRISHNA MITRA, K. M. YUSUF
NURNAHAR BEWA - Appellant
Versus
RABINDRA NATH DEV - Respondent
C. O. 2508 Of 1983
Decided On : 05/12/1988
LIMITATION ACT, 1963 - SECTION 137 - CIVIL PROCEDURE CODE, 1908 - SECTION 141 - ORDER 9, RULE 13 - RESTORATION OF APPLICATION - LIMITATION - PERIOD OF LIMITATION FOR RESTORATION OF APPLICATION UNDER ORDER 9, RULE 4 OR 9 OF THE CODE FOR SETTING ASIDE AN ORDER OF DISMISSAL FOR DEFAULT OF AN APPLICATION UNDER RULES 4, 9 OR 13 OF ORDER 9 OF THE CODE.
Fact of the Case:
An application under Order 9 Rule 13 of the Code of Civil Procedure for recalling the ex parte degree was dismissed for default. An application under Order 9 Rule 4, read with Section 141 of the Code of Civil Procedure and also under Section 5 of the Limitation Act was made by the defendant petitioners for recalling the said order of dismissal. The learned Munsif dismissed the said application for recalling the order of dismissal of Misc. Case No. 4 of 1981 for default on the finding that the said application for restoration under Order 9, Rule 4 read with Section 141 of the Code of Civil Procedure was barred by limitation and the petitioners failed to prove any sufficient cause for which the delay should be condoned in presenting the application beyond the period of limitation.
Finding of the Court:
1. An application under Order 9 Rule 4 or 9 of the Code of Civil Procedure for restoration of an application under Rules 4, 9 or 13 of Order 9 dismissed for default is maintainable under Order 9 read with Section 141 of the Code of Civil Procedure. 2. The period of limitation for making an application under Order 9 Rule 4 or 9 of the Code for setting aside an order of dismissal for default of an application under Rules 4, 9 or 13 of Order 9 of the Code is governed by Article 137 of the Limitation Act, 1963 and the period of limitation is, therefore, three years.
Issues: 1. Whether by invoking the provision of Section 141 of the Code, an application under Order 9 Rule 4 or Order 9 Rule 9 of the Code can be made for setting aside an order of dismissal for default of an application under Rules 4, 9 or 13 or Order 9 of the code? 2. When such an application is maintainable, what would be the limitation for such an application
Ratio Decidendi: 1. The Code of Civil Procedure has two parts: (a) "body of the code" and (b) the "rules". The "body of the code" is inflexible and can only be altered by amendment by the Legislature. The "rules" are more flexible and can be easily altered by the High Courts under Section 122 of the Code. The rules primarily relate to procedural matters and get sustenance from the Sections of the Code. However, the rules are not absolutely procedural and also deal with substantive rights. 2. The proceedings referred to in Section 141 of the Code of Civil Procedure are not confined to only original proceedings. The Supreme Court in Ramchandra's case has indicated that 'proceedings' under Section 141 are of wider amplitude. 3. The conflict as to whether or not a proceeding under Order 9 will be a miscellaneous proceeding as contemplated in Section 141 of the Code of Civil Procedure has been set at rest by the Amendment Act of 1976. The explanation added to Section 141 specifically includes proceedings under Order 9. 4. The application for restoration of a misc. case arising out of an application under Rule 4, 9 or 13 of Order 9 for restoration of the misc. case if such misc. case itself is dismissed for default, is maintainable under Order 9 read with Section 141 of the Code of Civil Procedure. 5. The period of limitation for making an application for restoration of a suit dismissed for default under Order 9 of the Code is thirty days from the date of the order of dismissal. 6. The application for restoration of a miscellaneous case arising out of such application under Order 9, when such Misc. Case is dismissed for default, is not governed by the provisions of Article 122 of the Limitation Act in view of the fact that expressly in terms of the said Article 122, the miscellaneous case arising out of an application under Order 9 is not attracted and the period of limitation in such case should be governed by Article 137.
Final Decision: The first question is answered in the affirmative and the second question is answered by indicating that when an application is made under Order 9 Rule 4, 9 or 18 of the Code of Civil Procedure for setting aside a suit dismissed for default is itself dismissed for default and an application under Rule 4 or 9 of Order 9 is made for restoration of the said application, the period of limitation for making such application for restoration is governed by Article 137 of the Limitation Act, 1963 and the period of limitation is, therefore, three years.
( 1 ) THIS Revisional Application has been referred to a Larger Bench by a Division Bench presided over by Mr. Justice Anil Kumar Sen (as his Lordship then Was) for consideration by the Larger Bench the two points raised by their Lordships in the Division Bench: (1) Whether by invoking the provision of Section 141 of the Code, an application under Order 9 Rule 4 or Order 9 Rule 9 of the Code can be made for setting aside an order of dismissal for default of an application under Rules 4, 9 or 13 or Order 9 of the code? (2) When such an application is maintainable, what would he the limitation for such an application
( 2 ) THE revisional application was made under Section 115 of the Code of Civil Procedure by the petitioner Mst. Nurnahar Bewa and another against Rabindra Nath Deb and others, inter alia, challenging Order No. 40, dated 9th July, 1982 passed by learned Subordinate Judge, 2nd Court, Alipore in Miscellaneous Case No 55 of 1982.
( 3 ) THE short fact relevant for appreciating the points involved in this Special Bench Reference case may be stated as follows : -TITLE Suit No 22 of 1980 was instituted by the opposite party No. l against the petitioners being the defendants in the said suit for specific performance of a contract. The said suit was decreed ex parte and the balance of the consideration money was deposited by the plaintiffs in the said suit in Court within two months from the date of the decree and the said decree was put in execution in Title Execution Case No. 23 of 1980 for obtaining possession of the premises in question. The deed of conveyance was made, executed and. registered in January, 1981. The defendants, via. , the petitioners in this revisional application made an application under Order 9, Rule 13, read with Section 151 of the Code of Civil Procedure for recalling the said ex parte degree. On such application, Misc. Case No 4 of 1981 was started. The said Miscellaneous Case was also dismissed for default on 24th September, 1981 and on November 21, 1981, an application under Order 9 Rule 4, read with Section 141 of the Code of Civil Procedure and also under Section 5 of the Limitation Act was made by the defendant petitioners for recalling the said order of dismissal dated 24th September, 1981 passed in Misc. Case No 4 of 1981. On such application Misc. Case No. 55 of 1981 was started. The learned Munsif dismissed the said application for recalling the order of dismissal of Misc. Case No. 4 of 1981 for default on the finding that the said application for restoration under Order
9, Rule 4 read with Sanction 141 of the Code of Civil Procedure was barred by limitation and the petitioners failed to prove any sufficient cause for which the delay should be condoned in presenting the application beyond the period of limitation.
( 4 ) AT the hearing of the revisional application before the Division Bench of this Court, it was contended on behalf of the petitioners that the said application under Order 9 Rule 4 read with Section 141 of the Code of Civil Procedure was not barred by limitation but such application could be presented under the residuary article of the Limitation Act, viz. , Article 137 but by way of abundant caution a prayer for condonation of delay was made by the petitioners. It was also contended on behalf of the petitioners that when a Misc Case arising out of an application under Order 9 Rule 13 of the Code of Civil Procedure is dismissed for default, an application under Order 9, Rule 4, read with Section 141 of the Code of Civil Procedure is maintainable and the learned Subordinate Judge should have considered the said application for restoration on merits and should have disposed of the same on such consideration. It was, however, contended on behalf of the opposite parties that when the Misc. Case arising out of an application under Order 9, Rule 13 of the Code of Civil Procedure is dismissed for default, no further application under Order 9 Rule 4 is maintainable
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