Peddi Malliah vs Gumpa Shankeriah

This is a petition in revision on behalf of Peddi Malliah against the order of the Sub-Judge, Karimnagar; dated 10-3-1954, allowing the petition of the respondent, Gumpa Shankeriah and setting aside the ex parte decree passed on award in case No. 46/1 of 1953-54, Peddi Malliah v. Gumpa Shankeriah.

In this revision it is very strenuously contended that the Court below was not justified in setting aside the ex parte order on the ground that no notice was issued to the party to show cause why the award should not be filed. It is submitted that the Court while considering the petition to set aside an ex parte judgment, cannot go into the merits and demerits of the case. Reliance was placed on the cases reported in -- Radha Mohan Datt, Silk Merchant Vs. Abbas Ali Biswas and Others and -- A.H. Ghaznavi and Another Vs. Sardar Gurcharan Singh .

The second argument advanced is that the Court below has erred in coming to the conclusion that it had the powers under S. 151, C. P. C., to correct its errors. The contention is that non-issue of a notice is not such an error which could be corrected under S. 151.

The aggrieved party, he contends, could have filed a suit on the basis of fraud or preferred an-appeal or a review or a petition for setting aside the ex parte judgment. Lastly it is contended that in a petition for setting aside the ex parte judgment, the Court has got to confine itself only to the reasons of the absence of the petitioner to appear in the Court, and it has no power outside O. 9 R. 13, C. P. C., ex debito justitiae. Reliance was placed on -- Gadi Neelaveni v. Narayana Reddi'', AIR 1920 Mad 640 (FB) (C).

On behalf of the respondent relying on the case of -- Ganeshmal Bhawarlal Vs. Kesoram Cotton Mills Ltd., it is contended that it is a settled law that the Court has the inherent power and duty to correct injustice and to set aside judgment and order passed ex parte without notice to the party. Further, it has the inherent power to recall the previous order or decree if it is without jurisdiction.

It is submitted that when the learned advocate for the revision petitioner concedes that the order of the Court below is illegal and the Court below by exercising its powers under S. 151, C. P. C., has corrected its error, it is not necessary to exercise the powers under S. 115, C. P. C. and interfere in revision, where substantial justice has been rendered by the order of the lower Court notwithstanding the facts that the reasons for the order are not correct. We find sufficient force in the arguments of the learned Advocate for the respondent.

When the learned advocate for the petitioner has conceded that the ex parte order passed by the Court below without issuing a notice is illegal, we do not wish to go into a detailed discussion as to whether the Court below could exercise its powers under S. 151, C. P. C., as the case is before us in revision and it is not denied that this Court has the power to correct such errors.

We feel that if we do not correct this error in revision it would amount to refusing to exercise the jurisdiction vested in us and in a way upholding the illegal order.

It is lastly contended that the Court below has not at all considered as to whether there was sufficient cause for non-appearance of the petitioner and has set aside the judgment under S. 33, Arbitration Act which is not applicable, the case may be remanded to the Court below for that finding.

It is true that the Court has set aside the ex parte judgment under S. 33 of the said Act and that section is inapplicable. But when it is conceded that the ex parte order was illegal we do not see any sufficient reason to interfere in revision where substantial justice has been rendered by the order of the Court below notwithstanding that the reasons for the order are incorrect.

The petition in revision is, therefore, dismissed. We pass no order as to the costs of this Court.