MIR ASHRAF ALI Vs. MIR RAHMAN ALI

JUDGEMENT

(1.) The petitioners are plaintiffs. The ruit was filed for a declaration that they are the heirs of Mir Sardar Ali. The suit was decread exparte on 27-11-1972. An application I.A.No. 21/73 under Order 9 Rule 13 CPC was filed to sat aside the exparte decree. This application was dismissed on 30-5-1977 as the defendants or their advocate were not present when the petition was called for enquiry. Thereafter, an application I.A.Ne. 470/77 was filed under Order 9 Rule 9 CPC to set aside the order of dismissal pased in I.A.No. 21/73, on the ground that the General Power of attorney wrongly noted the hearing date as 6-6-1977, This petition was dismissed by the trial Court on 13-7-1981. On appeal, the additional Chief Judge. City Civil Court, Hyderabad allowed the appeal and restored I.A.No. 21/73 on condition that the defendants deposit Rs. 1OO/- towards costs. Aggrieved by this order the plaintiff filed this revision petition.

(2.) The learned counsel for the petitioners raised two-fold contention, namely, that tho appeal is not maintainable under Order 43, Rule 1, CPC as against the second application to restore the application to set aside the exparte decree and even otherwise, sufficient cause is not made out for restoration. The learned counsel for the respondents contended that in view of Sec. 141, CPC as amended by Amending Act of 1976, the original as well as substquent applications have to be considered as applications under Order 9 amenable to appeal under Order 43, Rule I CPC.

(3.) The learned counsel for the petitioners relied upon the decision of this Court in Md. Farkhuddin Ali vs. V. Khamrunnissa wherein it is held that under Order 43, Rule 1 C.P. C. appeal is not maintainable against an order dismiasing an application for restoration of an application for setting aside the dismissal of a suit or an exparte decree. The learned counsel for the respondent contended that the above decision is superseded in view of the amendment to section 141 CPC by an appendange of explanation by amending Act of 1976. It is amplified that in view of explanation the applications to set aside the orders dismissing the original applications for default also are comprehended in order 9 and as against said order appeal is maintainable. Section 141 CPC is as follows :