RAMA CHANDRA NAYAK Vs. SABITRI MANI MOHANTY

JUDGEMENT

(1.) The present appeal has been filed under Order 43, Rule l(t) of the Code of Civil Procedure (in short, the "C.P.C.") challenging the order of the District Judge, Balasore, refusing to re-admit the appeal which had been dismissed for default.

(2.) The present appellant had filed S.J. Appeal No. 40 of 1992 in the Court of the District Judge, Balasore, against the judgment and decree passed by the Additional Subordinate Judge, Balasore, in O.S, No. 78 of 1986 (174/79), which is a suit for partition. In the said appeal, notices issued against respondents 10, 11, 20, 52, 62 and 67 therein (the present respondents) were returned unserved and the appeal was posted to 20.1.1998 for taking fresh steps against those respondents. Though an application praying for time to take steps had been filed, the said petition was rejected and ultimately the appeal was dismissed as against those respondents. An application under Order 41, Rule 19, CPC was filed by the present appellant. The said application was rejected on 6.4.1998 by observing thus :

(3.) The appellate Court has relied upon the provisions contained in Order 9, Rule 5 and has observed that the said provision is applicable read with provision under Order 41, Rule 8, CPC Order 9, Rule 5 relates to dismissal of suit where plaintiff fails to file necessary requisites for fresh summons. However, Order 9, Rule 5(3), specifically envisages that in case of such a dismissal, the plaintiff may bring a fresh suit subject to the law of limitation. Order 41, Rule 8 CPC lays down as follows: