AMARCHAND Vs. SUKHRAM

JUDGEMENT

(1.) THIS is an application under sec. 115 of the Code of Civil Procedure against an order of the Munsif, Alwar dated 28th August, 1951 dismissing an application of the plaintiffs for restoration of their suit which had been dismissed for default on 24thoctober, 1950.

(2.) THE facts of the cases are that in a suit filed by the plaintiff's for an amount of Rs. 400/-, 19th of October, 1950, was the first date of hearing, but it was a holiday. THE case was taken up on the expiry of the holidays on the 24th October, 1950, by the court, and as the plaintiffs failed to appeal, the suit was dismissed for default. THE plaintiffs appeared on the 19th October, 1950, but as it was a holiday, they returned to their village under the impression that they would be informed of the date fixed for the hearing of the case. THEy waited till the 30th of November, 1950. when they tried to find out as to what had happened to their case, and they came to know that the suit had been dismissed for default. As the period of limitation had run against them under Art. 163 of the Limitation Act, they moved a review petition under Order XLVII, Rule 1, and claimed the benefit of sec. 151 of the Code of Civil Procedure. THE learned Munsif held that as sec. 151 did not apply to such cases inasmuch as the defendants had acquired a right, by lapse of the period of limitation, the suit could not be restored. Reliance was placed on the decisions in M. V. Sundaresa Ayyar vs. Pacala Sub-ba Rao (l) and Jagmohan Tewari vs. Mahadeo Prasad (2 ). As regards Order XLVII, Rule 1, the learned Munsif was of the opinion that the restoration petition could not be considered to be one under the provisions of Order XLVII. Rule 1. He also remarked that the plaintiffs had not paid any court fee as required by the law, and they could not be considered to be seriously contesting the petition under the provisions of Order XLVII, Rule 1 He accordingly dismissed the petition, which has given rise to this revision application.