HEERALAL SINCE DECEASED THROUGH LRS Vs. ISBATI

JUDGEMENT

(1.) THE instant petition calls in question the order dated 08.01.2010 passed by the Ist Civil Judge, Class I, Mahasamund, in Civil MJC Case No. 7/09, whereby the petitioner's application filed under Order 9 Rule 9 of CPC was dismissed as not maintainable.

(2.) BRIEF facts of the case are: petitioner filed an application under Order 9 Rule 13 of CPC for setting aside judgment and decree passed in Civil Suit No. 44-A/2000. On 21.08.2009, the said application was dismissed for want of prosecution. On the same day, the petitioner moved an application under Order 9 Rule 9 read with Section 151 of CPC for its restoration.

(3.) SIMILAR question was arose before the Full Bench of MP High Court in case of Nathu Prasad v. Singhai Kapurchand1, in which application under Order 9 Rule 9 was dismissed in default and application under Order 9 Rule 9 of CPC was filed for its restoration. It was held: An application under Order 9 Rule 9 of CPC is a proceeding in a court of civil jurisdiction within Section 141. The object and purpose of Section 141 is that for economy of words it was unnecessary to repeat the whole of the procedure in providing for procedure for an application or any other proceeding original or ancillary. An application under Order 9 Rule 9 of CPC is not an interlocutory application. By its nature, an application under Order 9 Rule 9 is an independent application and is registered as an independent Misc. Judicial case. Hence an application lies to restore application which was dismissed for default which application had been made for setting aside the dismissal of a suit for default.