LAWS(PAT)-1999-7-66

GOPI NATH MISHRA Vs. BANK OF INDIA

Decided On July 29, 1999
Gopi Nath Mishra Appellant
V/S
BANK OF INDIA Respondents

JUDGEMENT

(1.) THE defendant first party of Money suit no. 34/94 of the court of 5th Subordinate Judge, Bhagalpur is aggrieved by the order dated 3.5.97 by which Misc. case no. 12/95 filed by plaintiff - opposite party has been allowed and the suit has been restored.

(2.) THE suit was dismissed for default on 24.11.95. On 22.12.95 the plaintiff filed the aforesaid Misc. case for its restoration. Treating the petition under Order IX rule 4 CPC the Misc. case was allowed without issuing notice and giving opportunity to the defendant to contest the case.

(3.) THE only point for consideration is whether in the facts of the present case rule 8 of Order IX CPC was applicable so as to warrant dismissal of the suit itself. It is undisputed position that rule 9 becomes applicable only when dismissal is under rule 8. It would be useful to quote rule 8 of Order IX as under: