RAMENDRA NATH BOSE Vs. BIRENDRA NATH BOSE

JUDGEMENT

(1.) The plaintiffs preferred appeal under Order 43 (1) (c) of the Code of Civil Procedure against an order rejecting an application under Order 9, Rule 9 of the Civil P. C.

(2.) The plaintiffs filed a partition suit (Title Suit No. 108 of 1965) before the Subordinate Judge, Bhagalpur. On 1st June, 1970 the suit was dismissed for default of the plaintiffs. Thereafter, the plaintiffs filed an application under Order 9, Rule 9 of the Civil P. C. for setting aside the order of dismissal of the suit on the ground mentioned in the petition. In the application under Order 9, Rule 9 of the Civil P. C. these plaintiffs (appellants) stated that plaintiff No. 1 was in-charge for doing Pairvi in the case and he could not come on the date fixed for hearing for the simple reason that his mother was seriously ill. It was also stated in the petition that plaintiff No. 2 could not be present as he was medical practitioner at Naugachhia. The Court fixed 13-2-71 for hearing of the petition under Order 9, Rule 9 of the Civil P. C. When the case was called on 13-2-71, the plaintiffs were absent and ,as such the Miscellaneous Case No. 53 of 1970 was dismissed for non-prosecution. Miscellaneous Case No. 53 of 1970 arose out of the application filed by the appellants under Order 9 Rule 9 of the Civil P. C. It is against this order that the plaintiffs have preferred an appeal to this Court. Tt is mentioned in the order-sheet dated 13-2-71 that at 3 p.m. a petition for time as well as a petition under Section 151 of the Civil P. C, were filed by the appellants. The Court below rejected the petition under Section 151 of the Civil P. C. on the ground that the order dismissing the application under Order 9, Rule 9 of the Civil P. C. is appealable.

(3.) The short point for consideration in this appeal is :-- Whether the petition under Section 151 of the Civil P. C. is maintainable in a case where the petition under Order 9, Rule 9 is dismissed for default ?