R.M. Swaminatha Naicker vs R.P. Paul and Others

In this case, the City Civil Judge at first dismissed for default an application by a judgment-debtor under Order XXI, Rule 89, C.P.C.

Subsequently on application made by him, the Judge re-heard the petition for setting aside the sale and cancelled the sale, the judgment-debtor

having paid the deposit required by the rule above referred to. The purchaser prefers this appeal against the second order of the City Civil Judge

setting aside the sale. It is contended that the learned Judge had no jurisdiction to set aside his former order dismissing the judgment-debtor''s

application for default and that Order IX, Rules 9 and 4, of the C.P.C. are not applicable to applications for execution. The learned Judge did not

pass the order under either of these rules, but he held that he had the power to do so apart from these rules, and he refers to Section 151 of the

C.P.C. as justifying his action. It is unnecessary to decide whether the principle of Order ix, Rules 9 and 4, would be applicable to execution

proceedings or not, and whether the order of the lower court would be warranted by Section 151 of the C.P.C. There can be no doubt that the

lower court could have set aside its former order on an application for review. The judgment-debtor''s application was that, for the reasons stated

in the affidavit, the former order should be set aside. If the court had power, as we hold it had, to set aside the order on review, it was quite open

to the lower court to treat the application as one made under that section, and it is open to us to uphold the order on the ground that it could have

been passed on review, On the merits, we see no reason to differ from the conclusion arrived at by the learned Judge. We dismiss the appeal with

costs of the 2nd respondent.

The revision petition is also dismissed but without costs.