The inherent powers of the Court under Section 151, Civil Procedure Code can be invoked for restoration of a proceeding under Order 9 dismissed for default, even if an alternate remedy by way of appeal is available.

ORDER : Plaintiffs (opp. parties) filed O.S. 271 of 1959 in the court of the Subordinate Judge, Puri, for recovery of Rs. 23,000. An ex parte decree was passed against the defendant (petitioner) on 4-2-1961. He filed an application under Order 9, Rule 13, Civil Procedure Code on 1-3-1963 in M. J. C. 43/63 which was dismissed for default on 22-6-1963. Against that dismissal order, he filed M. A. No. 71/1963 in the High Court. On 1-10-1963 this miscellaneous appeal was permitted to be withdrawn. The order of the High Court was to the following effect. :

Mr. Misra wants to withdraw this appeal saying that he will move the Subordinate Judge. He is permitted to withdraw. We do not express any opinion as to the maintainability of such an application before the Subordinate Judge.

On 4-11-1963 petitioner filed an application u/s. 151, C.P.C. before the Subordinate Judge, Puri, in M. J. C. 283/63 for setting aside the order dated 22-6-1963 dismissing M. J. C. 43/63 for default. This application was dismissed on 10-2-1964 and against this order the Civil Revision has been filed.

The ground taken by the petitioner to show sufficient cause for his absence was that his authorised agent Biswanath Patnaik, who was looking after the case, was gained over by the opposite parties and did not inform him the date of hearing and he was thus kept in ignorance and remained absent. After examining the evidence, the learned Judge held that the petitioner failed to establish the factual basis in his case. The learned Judge did not exercise his inherent jurisdiction as the application u/s. 151 was tiled on 4-11-1963 about 35 days after the withdrawal of M. A. 71/63 in the High Court.

2. Mr. Mohapatra raised four contentions in opposing the application :

(i) The petitioner had remedy by wav of appeal for setting aside the dismissal order on 22-6-1963. Section 151, C.P.C. cannot be invoked when an alternate remedy was available.

(ii) The finding of the Subordinate Judge that there was absence of sufficient cause is a pure finding of fact which cannot be interfered with in revision.

(iii) The petitioner having availed of the alternate remedy by filing M. A. 71/63 in the High Court, which was withdrawn, is not entitled to invoke the inherent jurisdiction under S. 151, Civil Procedure Code.

(iv) Inherent jurisdiction should not be exercised in favour of the petitioner due to delay in filing the application.

All these contentions require careful examination.

3. The first objection is based on Doma Choudhary v. Ram Naresh Lal, AIR 1959 Pat 121 (PR). In that case, their Lordships held that an appeal lies under Order 43 R. 1(c) or (d) from an order rejecting for default an application under R. 9 or R. 13 of Order 9 respectively, as on a plain rending of clauses (e) and (d) to Order 43, R. 1, there is no ground for discriminating between rejection of an application on merits and its ejection for default. They noticed the position that the right of appeal is a creature of the statute and can neither be conferred nor taken away on a consideration of the question whether the remedy will or will not be convenient or adequate. This aspect of the matter was examined as it was contended before their Lordships that the remedy in an appeal against the order of dismissal would not he as efficacious as in an application for restoration where evidence regarding the existence or otherwise of sufficient cause for the absence can be taken. It is not necessary at repeat the reasonings given in support of their conclusion, Madan Lal Agarwalla v. Tripura Modern Bank Ltd., AIR 1954 Assam 1 (FB), which had taken a contrary view, was dissented. The Patna decision was followed in Udayanath Panda v. Baikuntha Nath Houlhra. ILR 1960 Cm 41 : (AIR 1960 Orissa 176) by my learned brother Barman, J. In Civil Revn. No. 229 of 1962, Krushnachandra Mohanty v. Bhaskar Mahalla followed ILR 1960 Cut 41 : (AIR 1960 Orissa 176) by stating "I am bound by the aforesaid decision" without independent examination.