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Joshi Shib Prakash And Ors. vs Jhinguria And Ors.

High Court Of Judicature at Allahabad|27 November, 1923

JUDGMENT / ORDER

JUDGMENT Stuart, J.
1. Jhinguria and others were appellants in a civil appeal which was transferred bo the Court of the. Additional Subordinate Judge at Agra for disposal. On the data fixed for hearing, as they were absent and unrepresented, the appeal was dismissed for default. It was dismissed on the 25th April 1922 under the provisions of Order XLI, Rule 17. There is a specific remedy in the Code of Civil Procedure to cover the case where an appellant has been prevented by sufficient cause from appearing and his appeal has been dismissed under this rule. That remedy is given in Order XLI, Rule 19. Under that rule the applicants could have applied for a restoration of heir appeal. It appears that they hays never so far adopted that remedy. On the 6th July 1922 when an application under Order XLI, Rule 19 would ordinarily have been beyond time they applied for a restoration under Order IX, Rule 8, a rule which had no application, Their application was dismissed. They then applied on the 19th August 1922 for a review of the original order of the 25th April 1922 dismissing their appeal for default. That application was dismissed. They then applied on the 11th November under Section 151 of the Code. That application was dismissed. They then applied on 15th December 1922 under Section 151 of the Code and on that occasion the presiding officer restored the appeal for hearing. His order is questioned in revision on the ground that he had no jurisdiction to pass it. The plea must prevail. Section 151 is as follows :
Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice pr to prevent abuse of the process of the Court.
2. The enactment of this section declared the existence of an inherent jurisdiction in all Courts to go beyond the law of procedure in the ends of justice. But Section 151 does not lay down that a Court may act in defiance of the law of procedure. A Judge is bound by the Code of Procedure and the Law of Limitation. Where the Code of Civil Procedure is silent, it is possible, and frequently desirable, to apply the previsions of Section 151. But the following qualification should be always applied. Section 151 cannot be applied where the rule of procedure is already laid down, and here the case is clear. The remedy lay under Order XLI, Rule 19 Owing to the appellants' laxity they waited until it was too late to apply under that rule and have since endeavored to obtain the relief they desired by ignoring the provisions of the law. I agree that the learned Additional Subordinate Judge had no jurisdiction to pass his order of the 17th March 1923. He passed that order by assuming an authority which he did not possess. He had no jurisdiction to take up the matter at all. It had been finally decided before. I, therefore, allow this application and set aside that order. The opposite party will pay their own costs and those of the petitioners.
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Title

Joshi Shib Prakash And Ors. vs Jhinguria And Ors.

Court

High Court Of Judicature at Allahabad

JudgmentDate
27 November, 1923
Judges
  • Stuart