METTU BUGGAREDDI Vs. DODDI KANAKADURGAIAH NAIDU

JUDGEMENT

(1.) This is an application to set aside the Order of this Court dated 15th June, 1960 rejecting Appeal No. 519 of 1957 on the ground that the petitioner failed to furnish security for costs under Order 41, rule 10, Civil Procedure Code, in accordance with the order passed by this Court in C.M.P. No. 2936 of 1958, dated 18th June, 1958.

(2.) .The petitioner alleges in the affidavit that he was suffering from cataract and that he was consequently bedridden and nearly blind for a considerable time It was only after he was operated in Guntur for the cataract that he came to know of the dismissal of the appeal for not complying with the order passed under Order 41, rule 10, Civil Procedure Cc de. The respondents denied these facts. As objection was also taken that an application to restore the order of dismissal of the appeal under Order 41, rule 10, Civil Procedure Code, does not lie. This objection is without force inasmuch as a Bench decision of the Madras High Court in Srinivasam v. Rukmam, (1927) 55 M.L.J. 330 : A.I.R. 1928 Mad. 964. held that having regard to the terms of section 107(2), Civil Procedure Code, the appellate Court has the same powers to restore an appeal as the trial Court has to restore a suit under the provisions of Order 25, rule 2, Civil Procedure Code The learned Judges held that the mere fact that under Order, 41, rule 10, Civil Procedure Code, no provision is made for the restoration of the appeal is not a sufficient ground for refusing to exercise the powers under Order 25, rule 2 read with section 107 (2), Civil Procedure Cede. A contrary view was taken in Sankarahnga Chetti v. Annamalai Chetti, (1909) 19 M.L.J. 304. That decision was distinguished on the ground that no reference was made to the express powers conferred on the appellate Court under section 107 (2), Civil Procedure Code. The decision in Srinivasam v Rukmam, was subsequently followed by another Bench in Sirur v. Mythili Animal3 The same view is expressed by Mr. Mulla in his Commentary on the Code of Civil Procedure, 12th Edition, at page 1196, and the decision in Snmvasam v. Rukmam,, is cited in footnote (b) as an authority for that proposition. Following the decisions in Snmvasam v. Rukmam, and Sirur v. Mythih Ammal, (1931) 61 M.L.J. 688: A.I.R. 1932 Mad. 170. we hold that an application for restoration of an appeal dismissed for not furnishing security for costs under Order 41, rule 10, Civil Procedure Code, is maintainable. We wish to point out that it is necessary that Order 41, rule 10, Civil Procedure Code, should be appropriately amended and brought in line with Order 25, rule 2, Civil Procedure Code, and a specific provisions made for the restoration in proper cases of appeals dismissed under Order 41, rule 10, Civil Procedure Code.

(3.) On the merits, however, we are not inclined to restore the appeal as no sufficient grounds are made out as to why the petitioner did not comply with the order of this Court dated 18th June, 1958. Even assuming that the petitioner had a cataract, it does not mean that he was not in a position to comply with the terms of the order by furnishing security within the time prescribed by this Court. The appeals came on for hearing nearly two years after the order under 41, rule 10, Civil Procedure Code, was passed. We are, therefore, satisfied that there is no sufficient cause for restoring the appeal. In the result, the application fails and is dismissed with costs. A.S.R.Petition for restoration lies; but, on merits, dismissed.