PREM PRAKASH AGARWAL Vs. RAM PRATAP

JUDGEMENT

(1.) THIS is an appeal by Prem Prakash Agrawal, defendant against the order dated 1-8-1961 of the District Judge of Kumaun, dismissing his application under Order 41, Rule 19, C. P. C., for restoration of the appeal which had earlier been dismissed on merits though according to him (appellant), for default under Order 41, Rule 11, C. P. C. The District Judge has not worded his order properly, but what he apparently meant was that the appeal had been dismissed on merits under Order 41, Rule 11 (1), C. P. C., and consequently no application under Order 41, Rule 19, C. P. C., for restoration of the appeal was maintainable, and the only remedy available to the party was to challenge the decree passed in the appeal by way of Second Appeal.

(2.) THE material facts of the case are that the suit instituted by Ram Pratap, respondent, was decreed ex parte when the defendant did not put in appearance on the date fixed for hearing. Prem Prakash Agarwal applied for restoration of the suit after setting aside the ex parte decree, but the application was dismissed. He thereafter, preferred an appeal against the order of dismissal, which was ordered to be listed for admission on 1-7-1961. The notice of the date of hearing was given to the counsel for the defendant-appellant, but on the date fixed, that is, 1-7-1961, neither the appellant nor his counsel put in appearance and the District Judge decided to dismiss the appeal on merits. Such an inference can be drawn from the following words used in the order dismissing the appeal.

(3.) THE learned Advocate for the plaintiff-respondent has raised a preliminary objection to the maintainability of the appeal. The point raised by him is that the appeal was dismissed on 1-7-1961 under Order 41, Rule 11 (1), C. P. C., and consequently no restoration application under Order 41, Rule 19, C. P. C., was maintainable and the only remedy available to the defendant was to challenge the order dated 1-7-1961 by way of appeal, or revision, as the case may be, and not by challenging the order passed on the application purporting to be under Order 41, Rule 19, C. P. C. The learned Advocate for the plaintiff-respondent has placed reliance upon certain observations made in Chiman Lal v. Zahur Uddin. 1938 All LJ 901 : (AIR 1938 All 548). These observations may be obiter dicta but they lay down the law, I may say with respect correctly.