BAIKUNTHESH PRASAD SINGH Vs. GANESH RAM

JUDGEMENT

(1.) Miscellaneous Appeal 267 of 1951 is brought against the order of the 1st Additional Subordinate Judge of Arrah by which he set aside an order of the Court dismissing a title appeal for default, in exercise of his powers under Order 47, Rule 1, Civil P. C.

(2.) Civil Revision application 554 of 1951 is filed by the same petitioners as an act of precaution.

(3.) The material facts are not in dispute. Against the judgment and decree dated 11-2-47, of the 2nd Additional Munsif of Buxar, the respondent preferred an appeal in the Court of the District Judge, Shahabad. The appellants had preferred a cross-objection regarding mesne profits. The appeal and the cross-objection were fixed for hearing before the District Judge on 7-6-1950. On that date, the Judge was engaged in hearing a sessions trial for which reason the appeal was adjourned for hearing to 20-7-1950. Before the date, however, an order was made for transferring the appeal to the Court of the Additional Subordinate Judge. On 20-7-1950, the Additional Subordinate Judge was engaged in hearing a part-heard title suit. The appeal was adjourned for hearing to the 21-7-1950. The appeal was called out on that date; but the lawyer for the respondent submitted that he had no instructions, and made a note to that effect in the order-sheet. The cross-objection, was, however, pressed, and after hearing argument on the cross-objection, the learned Subordinate Judge adjourned the case to the 26-7-1950, on which date he pronounced judgment dismissing the appeal for default and allowing the cross-objection. On 10-10-1950, the respondent filed an application under Order 41, Rule 19 for restoring the title appeal. It was argued on behalf of the appellants that the application was barred under Article 168, Limitation Act. The learned Subordinate Judge felt the force of the argument, but nevertheless treated the application under Order 41, Rule 19 as one for review under Order 47, Rule 1. He allowed the application as an application for review subject to the condition that the respondent paid a cost of Rs. 75.00 to the appellants and also paid half the amount of Court-fee payable for the appeal within a period of fifteen days from the date of the order.