DHANI MOHANTY Vs. HARI MOHANTY AND ORS.

JUDGEMENT

(1.) SECOND Appeal No. 31 of 1959 was dismissed for default on 7 -11 -1960. The Petitioner filed M.J.C. No. 40 of 1960 for restoration of the appeal. The said M.J.C. was allowed 27 -4 -1961, and the appeal was directed to be restored to file, on condition that the Petitioner would pay Rs. 50/ - as costs to the opposite parties within one week after reopening of the summer vacation. The Court reopened after summer vacation on 19 -6 -1961. The Petitioner did not pay the costs within the time stipulated, and so the order of restoration of the appeal, which was conditional on payment of costs, stood vacated. The present petition, purporting to be one under Sections 151 and 148 and Order 47, Rule 1, Code of Civil Procedure has been filed for restoration of the appeal.

(2.) THE Petitioner 's case is that as he had ascertained with respect to earlier gazette publications, the High Court was to reopen after summer vacation on 20 -6 -1961, and living in a mufassil area he was not aware of the subsequent order of he High Court reducing the summer vacation by one week from the closing end; that on 28 -6 -1961 he came to Cuttack with money to his lawyer and here he heard that the Court had already opened 9 days back and that the peremptory order that the appeal should stand dismissed, if no payment was made in time, had become absolute.

(3.) THE contention of Mr. Rao however is that no petition under Section 151, Code of Civil Procedure is maintainable in the present case, since the petition for restoration of the appeal ultimately standing dismissed, the Petitioner had a right in appeal under Order 43, Rule 1, Clause (t). Amongst others, Mr. Rao relied on a full Bench decision of the Patna High Court in Doma Chaudhary v. Ram Naresh Lal : A.I.R. 1959 Pat. 121 (F.B.). The said case refers to dismissal of a petition in default for restoration of a suit dismissed for default. Their Lordships held that whether the restoration petition was dismissed on merit or in default made no difference, and an appeal was maintainable in either case under Order 43, Rule 1 Clause (c), and they observed: