Anandavally Amma vs Federal Bank Ltd. and Another

P.K. Balasubramanyan, J.—This appeal is filed under Order 43, Rule (1)(j) of the Code of Civil Procedure, 1908, by judgment-debtor No. 2 challenges the dismissal by the executing court of an application filed by him under Order 21, Rule 90 of the Code of Civil Procedure. The dismissal was on the ground that the judgment debtor was not ready to proceed with the enquiry. The order reads :

"Petitioner is not ready. Hence dismissed."

According to us, the dismissal is one for default and the remedy of the appellant lies in moving the executing court under Order 21, Rule 106 of the Code of Civil Procedure. No appeal lies under Order 43, Rule (1)(j) of the Code against such an order. This view was taken in Velappan v. Sahasranaman [1978] KLT 806, wherein it was held that an order dismissing an application under Order 21, Rule 90 of the Code for default is not appealable under Order 43, Rule (1)(j) of the Code. We see no reason to differ from that statement of the law. When we pointed out this aspect to counsel, he submitted that the appeal may be returned to him so that he can file a civil revision against petition the order of the executing court.

When a suit is dismissed for default, the plaintiff has to move the court that dismissed the suit, under Order 9, Rule 9 of the Code of Civil Procedure. The plaintiff cannot file an appeal since, a dismissal for default is not a decree, going by the definition of "decree" contained in Section 2(2) of the Code of Civil Procedure. Nor can the plaintiff file a revision against the order dismissing the suit for default, since the plaintiff has a substantive right by way of an application under Order 9, rule 9 of the CPC for restoration of the suit. That the right to move an application under Order 9, Rule 9 of the Code is a substantive right is clear from State of Kerala v. Joseph [1989] 2 KLT 561. It has also been held that the only remedy available to the plaintiff is to apply under Order 9, Rule 9 of the Code, (see Muhammed v. Narayani [1991] 2 KLT 287)

Order 9 was held to be not applicable to execution proceedings in view of the decision in Dokku Bhushayya Vs. Katragadda Ramakrishnayya, . This was because, it was held that Section 141 of the Code applies only to original proceedings. This view was earlier taken by the Privy Council while construing the corresponding provision (Section 647 of the Code of 1882) in Thakur Prasad v. Sheik Fakir-ullah ILR 17 All 106 ; 22 IA 44. It was in that context that Order 21, rules 105 and 106 were inserted by the some High Courts including Kerala. These provisions were adopted by the CPC (Amendment) Act of 1976 and incorporated into Order 21 of the Code. The result, therefore, is that a person whose application under any of the provisions of Order 21 is dismissed for default, has a substantive remedy by way of an application under Order 21, Rule 106 of the Code of Civil Procedure. Hence, it is not open to a judgment-debtor whose application under Order 21, Rule 90 of the Code has been dismissed for default, to invoke the jurisdiction of this court u/s 115 of the CPC seeking to have the order of dismissal for default revised. So, we are not in a position to accede to the submission that this court can exercise its revisional jurisdiction in this case to revise the order of dismissal.

We dismiss the appeal without prejudice to the right of the appellant to move the executing court under Order 21, Rule 106 of the Code of Civil Procedure.