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Report No. 54

Section 139

1-O.11. Section 139 deals with persons who can administer oaths.

"Notaries" have power to administer oath under the Notaries Act.1 The question of adding "notaries" in section 139 was considered in detail in the earlier Report2 on the Code, with reference to the suggestions to that effect, received through the Ministry of Law. These suggestions stated that in the absence of a provision, the courts refused to accept the affidavits sworn before notaries. The previous Commission was of the view that instead of amending the Code, the matter should be left to the rules of court.

1. Section 8(1)(b), Notaries Act, 1952.

2. 27th Report, note on section 139.

Recommendation

1-O.12. We are, however, of the view that a specific provision would be useful.

1-O.12A. Accordingly, we recommend that section 139 should be amended by inserting a new clause (aa). The section will then read as follows:-

"139. In the case of any affidavit under this Code-

(a)

(aa) Any notary appointed under the Notaries Act, 1952.

(b) and (c)....

may administer the oath to the deponent."

Section 141

1-O.13. The applicability of section 141 to various types of proceedings has been the subject of controversy. The principal proceedings with reference to which the question has arisen may be mentioned:

(1) Proceedings under the C.P.C.

(a) Execution.

(b) Others.

(2) Proceedings under other Acts-

(a) Where a specific provision deals with the matter;

(b) Where no specific provision deals with the matter.

(3) Proceedings under the Constitution.

(4) Other proceedings.

Section 141- applicability to execution proceedings

1-O.14. The case-law is not uniform as to the applicability of section 141 to execution proceedings: for example, do Order 9, rule 8 and Order 9, rule 9, apply to execution proceedings? The position is not very clear on the point. We have considered the question whether section 141 should be extended to execution proceedings. It is not, however, feasible to extend section 141 to proceedings in execution. Such an omnibus provision would cause hardship. There may be rules┬Če.g. Order 9, rule 9,-which ought not to apply, in all their rigour, to execution. We have, however, considered the utility of applying specific provisions1 of the Code to execution and, wherever necessary made recommendations in that regard.

1. See for example, discussion as to Order 9, Order 21, rules 104-105, Order 28, rule 1, Order 26 etc.

Section 141 and Order 9, rule 9

1-O.15. The applicability of section 141 to proceedings under Order 9 is itself a matter of debate. Under Order 9, various kinds of orders and proceedings-e.g. ex parte proceedings and orders of dismissal for default-can be set aside (for sufficient cause). But, where an application for obtaining such relief is itself dismissed for default or decided ex parte, what is the position? Does section 141 apply so as to bring into application the beneficent provisions of Order 9 itself? That is the question that has arisen; and it appears that three different views have been expressed on the point.

(i) The High Court of Bombay has held that section 151 applies in such cases, and not section 141. Reference was first made to a Privy Council case,2 in which it was held that-

"the proceedings spoken in section 647 (of the 1882 Code of Civil Procedure which corresponds to section 141 of the present code), include original matters in the nature of suits, such as proceedings in probates, guardianships and so forth, and do not include executions."

1. Laxmi Investment Co. v. Tarachand, AIR 1968 Born 250 (253) (DB).

1-O.16. The Bombay High Court took the view that the remarks of the Privy Council and the expression "so forth" must be taken as referring to applications which are ejusdem generis with proceedings in probates, guardianships and so forth, that is to say, they do not refer to interlocutory applications or applications which arise out of other proceedings such as suits but which in themselves indicate a lis. Hence, section 141 did not apply to the instant case.

1-O.17. Further it was pointed out that the instant case, related1 to an application to restore a suit to file which had been dismissed for default, and not to a case where an ex parte order was issued. The court distinguished a Supreme Court case2 which was concerned with an ex parte decree passed in a summary suit under Order 37 of the Civil Procedure Code. There the question was whether such a decree could be set aside under section 151. The Supreme Court pointed out that Order 37, rule 4 expressly gave power to the Court to set aside an ex parte decree passed under the provisions of that Order, and there was therefore no scope for resort to section 151 for setting aside the decree. The present case did not relate to any such question.

1. Thakur Prasad v. Fakirullah, 1895 ILR 17 All 106 PC.

2. Ramakarandas v. Bhagwands, AIR 1965 SC 1144.

1-O.18. Accordingly, it was held that the further application to restore the application under Order 9, rule 9, to the file could be considered under the inherent powers of the court under section 151; and the case was sent back to the trial court, for disposal in conformity with this decision.

1-O.19. In an Orissa case,1 it was held that Order 9 has no application to a proceeding under Order 9, itself, but that section 151 can be applied. Apparently, section 141 was regarded as inapplicable to such a case. Same is the Calcutta view.2

1. Kunj Bihari Das v. Chanchla Das, AIR 1966 Ori 24 (G.R. Misra, J.).

2. Saral Krishna Bose v. Bishwesar Mitra, AIR 1927 Cal 534 (DB).

1-O.20. The Andhra view is that section 141 applies.1 Same is the Madras view.2

1. Raj Appa Rao v. Veera Raghava, AIR 1966 AP 263.

2. (a) Venkatanarasimha Rao v. Suranarayan, AIR 1926 Mad 325.

(b) Kaliakkal v. Palam Gunda, AIR 1926 Mad 654.

1-O.21. The Patna view1 is that section 141 does not apply in the absence of special circumstances and section 151 also does not apply. The applicant can, however, appeal under Order 43, rule 1(c)(d).

1. Doma Choudhary v. Rain Naresh Lal, AIR 1959 Pat 121 (FB).



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