DANDUMAL Vs. SURAJMAL

JUDGEMENT

(1.) THIS is an application by Dandumal for restoration of an appeal which was dismissed for default on the 4th of December 1951. The application was presented on the same day shortly after the appeal had been dismissed. It appears from the affidavit of the learned counsel filed in support of the application that there was some delay in the learned counsel appearing in Court with the result that the appeal was dismissed for default.

(2.) NO counter affidavit has been filed by the other side to controvert the facts alleged in the affidavit filed on behalf of the applicant nor was it possible to do so, because the facts alleged in the affidavit on behalf of the applicant were obviously correct. The learned counsel for the opposite party however objects that the present application is not maintainable, because it has not been made by Dandu-mal himself but has been signed and presented on his behalf by his counsel. He relies on Narain Chandra Khan vs. Jagannath Acharya Goswami and others (A. I. R. 1938 Pat. 575) in support of his submission. We are of opinion that that case has no application to the facts of the present case. In that case an appeal was dismissed for default of the appellant who was the defendant in the suit. The application for restoration was made by the vendee of the appellant and not by the appellant himself. It was in those circumstances that it was held that the application for restoration under Order 41 Rule 19 C. P. C has to be made by the person who wants the appeal to be restored and not by a transferee of the appellant.