SHYAMA KUMARI Vs. SHYAM SUNDER PRASAD SINGH

JUDGEMENT

(1.) THIS application is directed against an order of the District Judge of Monghyr dismissing an appeal which has been preferred by this applicant against an order of the Subordinate Judge of Begusarai rejecting an application under Order 9, Rule 9 of the Code of Civil Procedure. THIS applicant had instituted a suit in forma pauperis which was dismissed for default by the learned Subordinate Judge on 2-5-49, and for setting aside the order of dismissal, she had filed an application under Order 9, Rule 9 of the Code. From the facts as indicated in the judgments of the two courts it appears that her plea was that on account of her illness, she was not able to proceed with the suit on 2-5-49. The courts below were not prepared to accept her statement that she had been prevented on account of her illness from proceeding with the suit, and in that view of the matter, they dismissed her application for restoration. The learned District Judge has definitely said that "he has no doubt that the allegation of the defendant that the illness was a feigned one was true". It was not open to the applicant to challenge the findings of the courts below in his revision application, and I do not find any substance in the contention of the applicant's learned Counsel that the courts below had come to a decision in this case without considering properly the plea raised by her. I have looked into the depositions of the witnesses, and I find that the only ground that had been put forward by the applicant was the ground of illness, and certainly there is the finding of the court of appeal that she was not really prevented from proceeding with the case on account of her illness.

(2.) THE applicant's learned Counsel, however, submitted during the course of his argument that the order of dismissal passed on 2-5-49 was not really an order under Rule 8 of Order 9 of the Code, but an order under Rule 3 of Order 17. That, however, cannot improve matters for this applicant because if that order was an order under Order 17, Rule 3, then it amounted to a decree, and the remedy open to the petitioner was to prefer an appeal or to file an application for review. Neither was an appeal preferred nor was a review application filed, and the order dated 2-5-49 even if it is not perfectly legal cannot now be revised by me on this application.THEre is, therefore, no substance in this application, and I would dismiss it with costs: hearing fee two gold mohurs.