An order passed without notice is a nullity and not merely an irregular order. The imperative nature of notice to the opposite party under Rule 4, Clause (2)(a) of Order XLVII was highlighted, emphasizing the importance of complying with the clear provisions of the law.

1. The first respondent herein filed an application on 23rd February, 1920, for the execution of the decree in O.S. No, 14 of 1908. The application after several adjournments came on for hearing on 11th October, 1921, when, owing to the ab3ence of the decree-holders Pleader, it was dismissed. The decree-holders Pleader appeared before the Court sometime after and the Court restored the application to file without notica to the opposite party. On the same day, an application was made by the decree-holder for an amendment of the execution application. When the amendment application came on for hearing, the judgment-debtors contended that the order restoring the petition to file was illegal and that the amendment petition should not be allowed. The Subordinate Judge of Ramnad held that Order IX, Rule 9, C.P.C. was not applicable to execution proceedings and that the order restoring the petition to file, if treated as an order under Order XLVII, was illegal as the other party was not given notice of the application. In the result, he dismissed the petition for execution as well as the application for amendment. On appeal the District Judge held relying on Janki Nath Hore v. Prabhasini Dasi 30 Ind. Cas. 893 : 3 C.178 : 22 C.L.J. 99 : 19 C.W.N. 1077 that the Court has power under Order XLVII, to restore an application dismissed for default of appearance of the applicant and that even if it was not an order under Order XLVII, it should be treated as one made under Section 151. He set aside the order of the Subordinate Judge and remanded the execution application for disposal according to law. Defendants Nos. 5 and 7 have preferred this appeal against the order of the District Judge.

2. The first contention raised by Mr. C.S. Venkatachariar for the appellants is that the Court had no power to restore an application to file which was dismissed for default as Order IX, C.P.C., did not apply to execution proceedings. We have recently held in a case reported as Kalliakkal v. Palani Koundan 92 Ind. Cas. 533 : 50 M.L.J. 200 : 23 L.W. 227 : (1926) M.W.N. 245 : A.I.R. 1926 Mad. 412 that Order IX, C.P.C., did not apply to execution proceedings. Mr. Patanjali Sastri who appears for the first respondent does not challenge the correctness of this decision and concedes that Order IX is not applicable to execution proceedings. The order of the Subordinate Judge was not, therefore, one passed under Order IX, Rule 9.

3. It is next contended that the order restoring the execution petition to file should not be treated as an order made in review of the order dismissing the application. The Subordinate Judge when he restored the execution application to file, did not issue notice to the other side. Under Order XLVII, Rule 4 notice to the other side is imperative. Clause 2(a) is as follows:

No such application shall be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the decree or order, a review of which is applied for.

4. The question is whether an order passed without notice is a nullity or only an irregular order which the Court had jurisdiction to pass. The District Judge has relied upon Janki Nath Hore v. Prabhasini Dasi 30 Ind. Cas. 893 : 3 C.178 : 22 C.L.J. 99 : 19 C.W.N. 1077 as supporting his view that the order of the Subordinate Judge was an order under Order XLVII. In that case it was held "Where an appeal was summarily dismissed by a Division Bench of this Court and such order was ultimately set aside on review by .the said Bench on an ex parte application without notice to the respondents, that the last order was valid even in the absence of such notice." The learned Judges held that the respondent was not the opposite party within the meaning of Rule 4, Clause (2)(a), interested to appear and support the order of dismissal when the only order sought to be substituted therefor was that the appeal be heard in his presence. With very great respect we are unable to follow the reason