RADHA VALLABH SHEOKARAN Vs. AWCHIT RAJARAM

JUDGEMENT

(1.) BOSE , A.J.C. 1. This application relates to an order restoring a case to file.. The facts are not in dispute. On 2nd January 1930 the applicant Radhavallabh applied to have his debtor Awachit declared insolvent. On 12th November 1930, the date fixed for hearing, both parties appeared before the first Court and stated they had come to a compromise. They therefore asked for a couple of hours time to get a petition drawn up by a petition-writer, This was granted, but the learned Judge interpreted the application somewhat literally. He called the case again almost exactly two hours later, and finding nobody there, dismissed it in default. Shortly after this the parties appeared with their compromise petition and asked to have it recorded. On being told the case had already been dismissed in default they asked to have it restored to file, explaining that they had already appeared and been given permission to get their petition drawn up, and that the writing of it had taken a little longer than they had expected. The learned Judge rejected the application and passed the following order: In view of the compromise I see no reason to grant the application.

(2.) THIS was clearly wrong.

(3.) AFTER this on 10th December 1930 Radhavallabh again applied to have the case restored to file, and this time the application was allowed. The learned Judge of the appellate Court has set aside this order on the ground that the first order dated 12th November 1930 was on the merits and so the application on 10th December 1930 was beyond time. I am of opinion he was wrong. There was no judicial consideration of the first application. There was on the contrary a definite refusal to consider it, and consequently a refusal to exercise a jurisdiction which the Court was bound to exercise under the law. The second application dated 10th December 1930 was written within 30 days of the dismissal on 12th November 1930. So even if the application is regarded as an independent one and not one in revival of the first which had not been considered, it was still within time under Article 163, Lim. Act. Consequently the Court was competent to entertain it; and since it was satisfied that there was sufficient cause for restoration, had jurisdiction to pass the order it did. The appellate Court was therefore wrong in interfering with the first Court's order on the ground that it had acted without jurisdiction.