POORANCHAND MULCHAND JAIN Vs. KOMALCHAND BENIPRASAD JAIN

JUDGEMENT

(1.) THIS matter comes up before us on a reference by our learned brother Tare J. for decision on the question as to the period of limitation for an application for restoration of an application under Order 9 Rule 9 C. P. C. which itself has been dismissed in default.

(2.) THE petitioner Pooranchand's suit was dismissed for default in appearance under order 9 Rule 8 C. P. C. He then filed an application under Rule 9 for restoration. This application for restoration was itself dismissed for default of appearance on 3rd September 1959. Thereupon on 30th November 1959 the petitioner made an application for setting aside the dismissal of his application for restoration. This application was rejected by the trial Court on the ground of limitation relying on pitambar Lal v. Dodee Singh, ILR 46 All 319: (AIR 1924 All 503 ). In the Allahabad case it was held that an application for setting aside the dismissal in default of an application for restoration under Order 9 Rule 9 could itself be treated as an application for restoration of the suit and would be governed by Article 163 of the limitation Act.

(3.) FROM what the learned Judge has said in the order of reference, it appears that before him it was not disputed that an application for setting aside the dismissal in default of an application for restoration under Order 9 Rule 9 was competent under section 151 C. P. C. The controversy centred round the question as to whether an application for invoking the inherent powers of the Court under Section 151 was governed by Article 163 or by Article 181 of the Limitation Act. The learned Single judge thought it necessary to make this reference, as in his opinion, the question was of frequent occurrence and was not covered by any decision of this Court or any other High Court.