Case Note & Summary
The appeal arises from an order dated 25.8.2015 passed by the Civil Judge, Senior Division, Akola in M.J.C. No. 937/2014. The appellant, Purushottam Narayan Mahajan, filed a suit for specific performance of a contract based on an agreement to sell dated 22.11.2012, wherein the respondents agreed to sell 36R of agricultural land out of survey No.64C at village Gadegaon, Taluka and District Akola for a total consideration of Rs.1,05,00,000. An earnest amount of Rs.26,00,000 was paid. The suit was dismissed for default on 12.8.2014. The appellant filed an application under Order XXXIX Rule 11(2) CPC for restoration of the suit. The trial Court initially allowed the restoration application but later, on a subsequent application by the respondents, set aside its own order of restoration, holding that the earlier order was not correct. The appellant challenged this order. The High Court framed the issue whether the trial Court could rectify its own error and set aside its own order. The Court held that the trial Court had no jurisdiction to set aside its own order under Order XXXIX Rule 11(2) as it is not a review provision. The Court allowed the appeal, set aside the impugned order, and restored the trial Court's earlier order of restoration.
Headnote
A) Civil Procedure Code - Order XXXIX Rule 11(2) - Restoration of Suit - Inherent Power - The trial Court cannot set aside its own order under Order XXXIX Rule 11(2) as it is not a review or appeal provision. The Court held that once an order is passed, the trial Court becomes functus officio and cannot rectify its own error unless there is a specific provision or inherent power under Section 151 CPC. (Paras 1, 5-7) B) Civil Procedure Code - Section 151 - Inherent Power - The inherent power under Section 151 CPC cannot be used to set aside an order passed under Order XXXIX Rule 11(2) as it would amount to a review, which is not permissible without express provision. (Paras 5-7)
Issue of Consideration
Whether the trial Court, having found that the order passed by it was not correct, can rectify the said error and set aside its own order?
Final Decision
Appeal allowed. Impugned order dated 25.8.2015 set aside. Trial Court's earlier order of restoration restored.
Law Points
- Civil Procedure Code
- 1908
- Order XXXIX Rule 11(2)
- inherent power
- review
- restoration
- jurisdiction
- error rectification
