SOMAR BHUIYA Vs. KAPIL KUMAR GAUTAM

JUDGEMENT

(1.) This application in revision is by the defendants against an order restoring a miscellaneous case filed by the plaintiffs, which was dismissed for default in the following circumstances. The plaintiffs instituted Title Suit No. 12 of 1966, which was ultimately dismissed for default, in the absence of the defendants on 6th May, 1971. On the same day an application under Order 9, Rule 4 of the Code of Civil Procedure was filed, which was registered as Misc. Case No. 1 of 1971. This miscellaneous case was also dismissed for default on the 31st July, 1971. Thereafter an application under Section 151 of the Code of Civil Procedure (hereinafter to be referred to as 'the Code') was filed by the plaintiffs on the 21st March, 1972, obviously much beyond the period of thirty days. This application was registered as Misc. Case No. 1 of 1972. By the impugned order the learned Subordinate Judge has allowed the application and has ordered for restoration' of Miscellaneous Case No. 1 of 1971 (wrongly stated in the certified copy of the order as Miscellaneous Case No. 1 of 1972).

(2.) It appears that in the Court below only one question was raised, namely, maintainability of an application under Section 151 of the Code. The question of limitation does not appear to have been urged at that stage. The question of maintainability was decided in favour of the plaintiffs opposite party by the learned Additional Subordinate Judge by putting reliance upon a decision of Mr. Justice Untwalia (now the Hoo'ble C. J.) in the case of Chandrika Singh v. Parsidh Narayan Singh, AIR 1960 Pat 504 in which it was held that if an application under Order 9, Rule 4 of the Code was dismissed for default, an application under Section 151 of the Code for cancelling the order of dismissal of such an application and restoration of the same was competent.

(3.) In this court Mr. Kumar Bahadur appearing for the petitioners has urged only one question, namely the question of limita- tion and contended that the application filed under Section 151 of the Code was barred by limitation. Counsel put reliance upon Article 122 of the new Limitation Act which reads as follows;