BAJRANG RAI Vs. ISMAIL MIAN

JUDGEMENT

(1.) All these three revision applications have been referred to a Full Bench of five Judges, as the correctness of the Full Bench decision of three Judges, in the case of Doma Choudhary v. Ram Naresh Lal (AIR 1959 Pat 121) has been doubted in view of later decisions of the Supreme Court in the case of Mahanth Ram Das v. Ganga Das (AIR 1961 SC 882), and in the case of Manohar Lal Chppra v. Rai Bahadur Rao Raja Seth Hira Lal (AIR 1962 SC 527). All these three applications have been heard together and this judgment will govern all of them.

(2.) In all these three cases the question involved is whether an application under Section 151 is maintainable for restoring an application under Order IX, Rule 9, or Order IX, Rule 13 or an application under Order XLI, Rule 19 of the Civil P. C. (hereinafter referred to as the Code), which has been dismissed for default.

(3.) To appreciate the point involved, I shall state shortly the facts of the first case, namely, Civil Revision No. 713 of 1970. The petitioners in this civil revision application instituted Title Suit No. 8 of 1964 in the court of the Munsif, Buxar, for declaration that the sale deed dated the 13th Jan. 1940, in respect of 0.16 acre of land under Khata No. 102 of village Bhatsari, police station Braham-pur, executed by Chabila Rai in favour of Hashim Mian, was forged, fabricated, illegal and void on the grounds stated in the plaint. The plaintiff-petitioners are the sons and grandsons of Gharbha-ran Rai and his brother Chhabila Rai. The defendant-opposite party filed a written statement and their case was that Chhabila Rai was separate from the branch of Ramyad Rai and that the sale- deed executed by Chhabila Rai was a good transaction. The suit was dismissed for default on the 3rd July, 1969.