TILA DEVI ALIAS TILOTAMA DEVI Vs. KAMLA DEVI

JUDGEMENT

(1.) HEARD learned counsel for the petitioners and learned counsel for the opposite party in both the cases.

(2.) W .P. (C) No. 10384 of 2003 has been filed against the order dated 15.9.2003 passed by the learned Addl.District Judge, Rourkela in Civil Misc. Application No. 44 of 2003 directing restoration of the disputed property to the opposite party.

(3.) SHRI Dash, learned counsel appearing for the petitioners in both the cases submits that the suit was dismissed for default on 12.5.2003 and against the said order the revision filed before the learned Addl.District Judge is not maintainable. There being specific provision in the statute for restoration of the suit and no appeal having been provided for under Order 43, Rule 1 C.P.C., the revision was not maintainable. There appears to be considerable force in the contention of the learned counsel appearing for the petitioners. Where a suit is dismissed for default under Order 9, Rule 8 C.P.C., an application can be filed under the very same order for restoration. Section 115 of the Code of Civil Procedure has no application in the present case to maintain a revision against the said order. However on perusal of the impugned order passed in the Civil Revision Proceeding, it appears that the suit had been posted to 12.5.2003 awaiting order of stay from the higher forum. On the said date the plaintiff -opposite party did not take any step and the suit was dismissed for default. It further appears that an interim order of stay was passed by the learned Addl. District Judge, Rourkela in Civil Misc. Appeal No. 56 of 2002, but unfortunately the same had not been communicated to the trial Court.