LAL BAHADUR Vs. RAM NARAIN

JUDGEMENT

(1.) This appeal is directed against the order dated with March, 1980 passed by the 2nd Additional District Judge, Muzaffarpur in Miscellaneous Case No. 22 of 1979 by which the application for restoration under Order 41, Rule 19 of the Code of Civil Procedure (hereinafter referred to as the Code) for setting aside the order of dismissal for default dated 1-9-79 in Money Appeal No. 8 of 1977 has been rejected.

(2.) When this case was originally placed before a learned single Judge of this Court for hearing on 13-3-1986 the learned Judge, doubting the correctness of the decision of another single Judge in the case of Kishore Kumar v. Basudevo Prasad, 1977 BBCJ (HC) 319 referred the appeal to the Division Bench for disposal.

(3.) The moot question for consideration in this case is, in my view, not testing the validity of the observations made in the case of Kishore Kumar Agrawal (supra) which was sought to be reinforced by learned counsel for the appellant by the case of Ram Sukhal Pathak v. Kesho Prasad Singh, 3 Pat LJ 218 (SB) with specific reference to an observation made by one of the learned Judges whose difference with another learned Judge of this Court ultimately led the case to be heard by a Full Bench. That specific reference which has been pressed upon our attention finds place in a paragraph of the judgement of Jwala Prasad, J. differing from Mullick J. at page 221 of the report. I shall presently show that even this Full Bench decision cannot be pressed into service in aid of the appellant. Therefore, before expressing my opinion with regard to the correctness of the decision in Kishore Kumar Agrawal's case (supra), if necessary, it is relevant to give a short narration of the facts of the instant case.