Applicability of the provisions of Section141 and Order 9, rule 13 of the Code of Civil Procedure to reference proceedings.

JAGADISAN, J. :- These civil revision petitions have been directed to be heard by a Division Bench by order of the learned Chief Justice in view of the importance of the question that is raised and, because, the decision of a single Judge of this court in Kodammal v. Duraiswami Naicker, 1961-1 Mad LJ 284 : (AIR 1961 Mad 384) is challenged as not having been correctly decided.

2. The undisputed facts are as follows. A dispute in respect of possession of certain lands save rise to a proceeding under S. 145 Crl. P. C. before the Revenue Divisional Officer, Usilampatti who is the Executive I Class Magistrate, Usilampatti. Before the learned Magistrate one Periya Karuppa Thevar and 9 others were the B party and one Vellia alias Ocha Thevar constituted the A party. The learned magistrate, being apparently of the opinion that the question which party was in possession on the crucial date, namely, the date of the preliminary order could not be satisfactorily determined by him, referred the matter to the District Munsif, Tirumangalam. This procedure was adopted under S. 146 Crl. P. C. When the proceedings came on for hearing before the learned District Munsif on 18-9-1959 the A party appeared through his counsel, but the B party were absent and remained ex parte. A witness was examined on the side of the A party who swore to the possession of that party on the date of the preliminary order and there was no evidence contra. On this evidence an ex parte order was passed by the learned District Munsif holding adversely against the B party by declaring the possession of the A party.

3. The B party therefore filed an interlocutory application, I. No. 1144 of 1959 before the District Munsif praying to set aside the ex parte order, invoking the aid of S. 151 and O. IX, R. 13, C. P. C. During the pendency of this application Vellai alias Ocha Thevar, the A party, died on 27-10-1959. The B party thereupon filed I. A. No. 1416 of 1959 to bring on record the widow and the daughter of the deceased A party as legal representatives in order to enable them to prosecute further the application to set aside the ex parte order. The learned District Munsif held that the provisions of the Civil Procedure Code were not applicable to the reference proceedings under S. 146, Crl. P. C. and dismissed both the applications. It is against these orders that the present civil revision petitions have been preferred.

4. It is necessary to refer even at the outset to the decision in 1961-1 Mad LJ 284 : (AIR 1961 Mad 384), as the correctness of this decision has been called in question by the learned Advocate General appearing for the respondent in these petitions. That was also a case where a reference in the Civil Court under S. 146, Crl. P. C. was made by the magistrate in a proceeding under S. 145, Crl. P. C. The A party failed to be present in the civil Court when the matter was posted for hearing and was treated as ex parte. The reference was disposed of by the civil Court in their absence. There does not appear to have been any application in that case under Order IX, Rule 13, C. P. C. for setting aside the ex parte order. Apparently after the ex parte order of the civil Court was transmitted to the magistrate and after the Magistrate implemented the finding of the civil Court, a petition to quash those proceedings was filed in this Court. One of the grounds urged for quashing the magisterial proceedings was that the petitioners who were absent before the civil Court had no opportunity to participate in the enquiry held by the civil Court. Anantanarayanan, J. held that the interests of equity and justice required that they should be heard. At p. 284 (of Mad LJ) : (at p. 385 of AIR) the learned Judge observes thus :

"In any event, it is now clear upon the authority Kochadai Naidu v. Nagayasami Naidu 1960 Mad WN 811 : (AIR 1961 Mad 247) that all provisions of the Civil Procedure Code are applicable to such matters as a reference to a civil Court under S. 146