1983 Supreme(MP) 168

GP Singh. C. J.
Baburao Vyas v. Vijay Mahajan
C. R. No. 396 of 1982 (I); Decided on 29-6-1983

Headnote:(1) Civil P. C. 1908 -- S. 141 -- procedure provided in Code -- is equally applicable to execution proceedings which are in nature of original proceedings.

        (2) Civil P. C. 1908 -- O. 23 R. 1 (1) (Proviso) and O. 21, R. 58 -- application under O. 21, R. 58 dismissed as not pressed -- provision under proviso to O. 21, R.I. (1) overlooked -- application is liable to be restored to the extent of minors interest.

        (3) Civil P. C. 1908 -- S. 151 -- provision of law overlooked in dismissing application --- restoration may be ordered under inherent powers.

        The facts briefly stated are that in execution of a decree a house was attached Non applicants 2 and 3, Laxmikant and Kusumbai made an application under O. 21. R. 58. CPC Objecting to the attachment. Laxmikant is the son of Kusumbai. He is a minor and the application was made by him through his guardian Kusumbai. On 6-4-1981 the counsel appearing for them said before the Court that the application may be dismissed as not pressed. The application was accordingly dismissed. On 4-5-1981 an application was filed by the non-applicants 2 and 3 for restoration of the said application under O. 21. R. 58, CPC. It is this application which has been allowed by the order under revision.

        The only ground on which the Court below has restored the application under O. 21. R. 58. CPC is that the provisions of the proviso to O. 23. R. 1 (1). CPC were overlooked and that the leave of the Court was not obtained when the application was dismissed as not pressed.

        Held : Learned counsel for the applicant in this revision contended that the provisions of O. 23, R. 1 are Dot applicable to an application under O. 21, R. 58. His argument is that S. 141. C.P.C. makes the procedure provided by the Code for suits applicable to all proceedings, but proceedings in execution are not original proceedings to which the procedure in regard to suits can be applied. The Supreme Court in Ram Chandra Agarwal v. State of U. P. ( AIR. 1966 S. C. 1888) bas pointed out that it bas in some cases acted on the basis that S. 141 is not confined to original proceedings. Apart from that, a proceeding under O. 21, R. 58, CPC is in the nature of original proceeding. An order passed in such a proceeding adjudicating the claim or objection has the same force as a decree and is appealable like a decree. The Court below was right in holding that the proviso to O. 23, R. 1 (1), CPC was applicable and that there was a mistake on the part of the Court in dismissing the application as not pressed, although no leave was obtained for that purpose on behalf of the minor.

        There is, however, no ground for restoring the application in so far as it related to the interest of the mother, i.e. non applicant No. 3-Kusmbai. So far as her individual interest is concerned, the counsel appearing for her abandoned her claim and the Court was justified in dismissing the application to that extant.

        Learned counsel for the applicant also submitted that the application for restoration, which was treated as an application for review, was barred by limitation. This argument is clearly wrong for the application was made within 30 days of the dismissal of the application under O. 21, R. 58. Apart from that, S. 151 was also applicable as everyone including the Court overlooked the provisions of the proviso to O. 23 R (1).

        The revision is partly allowed. The order under revision in so far as it restores the application to the extent of tbe individual interest of Kusumbai is set aside. The order under revision will be effective in so far as it restores the application under O. 21, R. 58 to the extent of the interest of the minor Laxmikant.

        AIR 1966 S.C. 1888 relied on. Revision partly allowed.