BALARAM OJHA Vs. STAR TRADING AND INVESTMENT LTD

JUDGEMENT

(1.) The only point that is involved in this Rule is whether an application under Section 151 of the Code of Civil Procedure is maintainable for the restoration of the written statement dismissed under Rule 21 of Order 11 of the Code.

(2.) The opposite party, who is the defendant in the suit out of which this appeal arises, failed to discover on oath within the period allowed by the court below. On the application of the petitioner under Rule 21 of Order 11 of the Code, the court below by its order No. 37 dated July 16, 1976 struck out his defence. On September 22, 1976, the opposite party filed an application under Section 151 of the Code praying for setting aside the said order No. 37 and for restoration of his defence. The court below, after considering the circumstances alleged in the said application explaining the failure of the opposite party to discover on oath, by its order No. 41 dated November 26, 1976 directed that the application would be allowed and the said order No. 37 would be set aside on the opposite party's paying a cost of Rs. 12 to the petitioner by December 3, 1976. Being aggrieved by the said order No, 41, the petitioner has obtained the instant Rule.

(3.) It is contended by Mr. Anilanda Mukherjee, learned Advocate appearing on behalf of the petitioner that an order passed under Rule 21 of Order 11 being appealable under Clause (f) of Rule 1 of Order 43, the application under Section 151 was not maintainable. In support of his contention, he has placed strong reliance on a decision of the Supreme Court in Nainsingh v. Koonwarjee, . In that case, the Supreme Court observed as follows (at p. 998) :--