Whether Order dismissing a suit for non payment of costs is a decree and whether the same court can recall said order?

The Apex Court has clearly held that dismissal of the suit for non-prosecution is not a decree as specified by Section 2(2) of the C.P.C. There is no difficulty in holding that an order dismissing a suit for non-payment of costs is essentially an order dismissing the suit for non-prosecution. Therefore, in my humble opinion, the order dismissing the suit for non-payment of costs is not a decree. {Para 22}

23. Coming to the third question, I am of the considered opinion that in view of the law laid down by the Apex Court and the discussion in relation to questions 1 and 2 above that in case a suit is dismissed or defence is struck off in terms of Section 35B, only on account of non-payment of costs, the aggrieved party can apply to the Court under Section 151, C.P.C. for recalling the orders, if it can show sufficient cause for non-payment of the costs imposed. Every Court has the power to recall or review its orders. In the absence of any express provision in this behalf, the power can also be derived from Section 151, C.P.C. The Madhya Pradesh High Court rightly held that Order 9 Rule 9, C.P.C. would not be applicable in such a case. This, however, does not mean that the party is left without remedy. The Court has the inherent power to recall its earlier order.

IN THE HIGH COURT OF HIMACHAL PRADESH

Decided On: 27.06.2008

Piaro Devi Vs. Anant Ram and Ors.

Hon'ble Judges/Coram:

Deepak Gupta, J.

Citation: MANU/HP/0122/2008,AIR 2008 HP 107

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Whether provisions of S 35-B of CPC in respect of costs for causing delay are mandatory?

The facts of the case are given in the elaborate order of reference prepared by my learned brother P.C. Jain, J., and I need hot repeat them all over again. The short question, which this Full Bench is called upon to decide is whether the provisions of section 35-B of the Code of Civil Procedure (hereinafter referred to as the Code) are mandatory, fend if so, to what extent.

 In accordance with the majority decision it is held that in the event of the party failing to pay the costs on the date next following the date of the order imposing costs, it is mandatory on the Court to disallow the prosecution of the suit or the defence, as the case may be and that no other extraneous consideration would weigh with the Court in exercising its jurisdiction against the delinquent party. However, where the costs are not paid as a result of the circumstances beyond the control of the defaulting party, then the Court will be well within its jurisdiction to exercise its power under Section 148 of the Code in favour of the defaulting party if a strong case is made out for the exercise of such jurisdiction.

IN THE HIGH COURT OF PUNJAB AND HARYANA

Civil Revision No. 1878 of 1978

Decided On: 03.06.1981

Anand Parkash  Vs.  Bharat Bhushan Rai and Ors.

Hon'ble Judges/Coram:

S.S. Sandhawalia, C.J., Prem Chand Jain and Mela Ram Sharma, JJ.

Authored By : Mela Ram Sharma, Prem Chand Jain, S.S. Sandhawalia

Citation: AIR 1981 P&H 269

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