THILAKEN Vs. VIVEKACHANDRIKA SABHA

JUDGEMENT

(1.) THE judgment-debtor is the revision petitioner. His application for benefit under Act 17 of 1977 was dismissed by the lower court stating that a previous application for the same purpose has also been dismissed and as such this application is barred by res judicata. It is this order that is challenged in this revision petition.

(2.) THE petitioner's counsel submitted that the dismissal of his earlier application on 28-11-1978 was for default and that will not debar him from filing a fresh petition claiming benefit under the Act. It is seen from the order dated 28-11-1978 that the petitioner applied for time. That was dismissed and for his absence his application was also dismissed. This is clearly a dismissal not on the merits, but for default. That being so the order dated 28-11-1978 cannot be said to be an order passed within the meaning of the expression 'heard and finally decided' under S. 11 CPC. In support of this contention the petitioner's counsel relied on the decision of the Supreme Court in Shivashankar v. Baikunth (AIR. 1969 SC. 1971 ). THE principle laid down in that decision applies on all fours to the facts here. That being so the order dismissing the earlier application does not preclude the petitioner from filing a fresh petition for the same relief. THE lower court should have considered the application on the merits and passed final orders thereon. So the order cannot stand.