Manoramadevi vs Kanhaiyalal

Samvatsar, J.—This revision-application is filed by the plaintiff.

Facts giving rise to this petition briefly stated are as follows:--

The opponent No. 1 Kanhaiyalal obtained a decree against opponent No. 2 Narmadashankar who is the husband of the petitioner, and applied to execute it in the Court of Civil Judge at Indore. In execution of that decree Kanhaiyalal attached certain moveable property from the house of his debtor Narmadashankar. The plaintiff Manoramadevi claimed to be the owner of the attached property and applied for removal of the attachment and release of the property under the provisions of Order 21, Rule 58, Civil Procedure Code. The objection case was dismissed. She therefore filed a suit under the provisions of Order 21 Rule 63, out of which the present revision-application arises.

The decree-holder Kanhaiyalal contested the suit. He denied that the attached property belonged to the plaintiff. The Court thereupon framed an issue, the burden of proving which was cast on the plaintiff, and fixed the case for hearing evidence on 6-10-1955. On that date the plaintiff did not produce her witnesses. She herself was also not present and her pleader applied to the Court to adjourn the case. In the application for adjournment it was stated that the plaintiff would keep her witnesses present on the adjourned date. The Court granted the prayer and postponed the case to 22-10-1955. When the case was taken up on that date the plaintiff and her pleader were found to be absent. Her witnesses were also not present. The Court therefore dismissed the suit. Aggrieved by this dismissal of her suit, the plaintiff has preferred this revision-application.

The short point that arises in this case is, whether the present revision-application is maintainable.

The trial Court had fixed the case for plaintiff''s evidence on 6-10-1955 but as on that date the plaintiff requested for further time to enable her to produce her witnesses and to examine herself, the Court adjourned the case to 22-10-1955. The case was thus adjourned at the instance and on the request of the plaintiff and on the date fixed she had to produce her witnesses for which time had been granted to her. She failed to do so. The Court under the circumstances is empowered to decide the suit forthwith.

It was expressly mentioned in the order of the lower Court that the suit was being dismissed under Order 17 Rule 3 Civil Procedure Code. The Court has also referred to the fact that the burden of proving her claim lay on the plaintiff and she has adduced no evidence to prove her case. The Court has thus substantially complied with the requirements of Order 17 Rule 3 in deciding the suit.

Mr. Pande, learned Counsel for the petitioner contended that the order of the lower Court should be construed as one under Order 17 Rule 2 and not under Order 17 Rule 3 Civil Procedure Code. In my opinion when the order has been expressly passed by the Court concerned under Order 17 Rule 3, it is not open to construe it otherwise and to hold that it should be deemed to be one passed under Order 17 Rule 2.

In Faiyaz Khan Vs. Mithan, a Division Bench of the Allahabad High Court has considered this question. It held:--

We think that if the order granting the plaintiff a decree is actually made by the Court under Order 17 Rule 3, an application by the defendant under Order 9 Rule 13 will not lie and that the defendant''s remedy is by way of appeal or review. This view appears to us not merely to have the merit of practical convenience--for it is important that the litigant should be in no doubt as to where his remedy lies--but sound. In principle. What has to be considered is the power vested in the Judge who decided the suit; and in so deciding if he purported to act under Order 17 Rule 3 he could have, it appears to us, no jurisdiction under Order 9 Rule 13 to set aside the decree which he bad passed.

A similar view has been taken by the Pepsu High Court in Balbahadar Singh vs. Walaiti Ram, AIR 1954 Pepsu 55.

I am therefore of opinion that there is no force in the contention of Mr. Pande learned Counsel for the petitioner that the order of the lower Court should be construed as an order under Order 17 Rule 2 Civil Procedure Code.

The learned Civil Judge who passed the order dismissing the plaintiff''s suit acted under O. 17 R. 3 and that the plaintiff''s remedy lay in filing an appeal. Since the appeal is competent, no revision is maintainable. It Is therefore dismissed with costs.