B S GANGADHARIAH Vs. THIMMAMMA

JUDGEMENT

(1.) The petitioner who is the plaintiff before the trial Court filed a suit in O. S. No. 124 of 45-46 against the respondents on the foot of a mortgage deed and the suit was dismissed for default of the plaintiff. He filed then Misc. Application No. 167 of 46-47 under Order 9 Rule 9. Civil P. C. to have the ex parte dismissal order set aside. That application too was dismissed once again for default of the plaintiff-petitioner. He thereupon filed an application in Misc. case No. 103 of 47-48 under Order 47, Rule 1, Civil P. C. before the trial Court to have the said ex parte order reviewed and the learned Munsiff held that it was not maintainable. This revision petition is filed against the said order.

(2.) The learned Judge who heard this petition felt that the point involved was fairly important and that there was divergence of opinion even is this Court and therefore referred this petition to a Bench.

(3.) Only two points arise for consideration is this petition. The first of them is whether an application under Order 47, Rule 1, Civil P. C. is maintainable against an order passed on an application filed for restoring the suit on file which had been dismissed for default. The other question is whether the expression 'sufficient reason' in Rule 1 of Order 47, Civil P. C. covers cases of default in appearance. It is not necessary for us to discuss at length the question of maintainability as it has been uniformly held by this Court that an application under Order 47, Rule 1, Civil P. C. in the circumstances referred to 1 above is maintainable. Even the decision reported in 41 Mys. C. C. R. 891 relied upon by the learned Munsiff does nowhere say that an application is not maintainable. Their Lordships is that decision confined their attention to the interpretation of the expression 'sufficient reason' in Rule 1 of Order 47, Civil P. C. which will be adverted to later.