GANESH PRASAD Vs. BHAGELU RAM

JUDGEMENT

(1.) This is an application in revision against an order restoring an application for restoration dismissed for default. I need express no opinion as to whether a revision lies, because we consider that in any case the application fails on the merits but I may note that in Sheik Kallu V/s. Nadir Baksh A.I.R. 1922 All. 441 a Bench of this Court held that no revision lay against an order restoring the case, be-cause the order was not a final order. The suit had been dismissed for default. The plaintiffs applied to have it restored. That application was also dismissed for default. They then presented an application to the effect that they had been prevented from attending on the date fixed and asked for their restoration application to be restored. It was restored on payment of Rs. 5 costs to the opposite party. The defendant in revision contends that if such an application has boon dismissed ex-parte more than thirty days after the date of the decree, the plaintiff's are left without a remedy. He relies on the decision Pitambar Lal v. Dodee Singh A.I.R. 1924 All. 503. I notice that in the case relied on, though the learned Judges held that Order 9, Rule 9, did not apply they nevertheless refused to interfere. In Oudh I have followed the view which is also taken by the Calcutta and Punjab High Courts, that Order 9, read with Section 141, Civil P.C., can be applied to these proceedings. I may refer to the following authorities : 9 O.L.J. 627; 44 Cal. 950; and 1 Lah. 329. There may be special reasons why Order 9 should be held inapplicable to execution proceedings, but I can see none for not applying to a proceeding of this kind. The question of appeal is not to my mind an objection. If Order 9 does not apply then as Pitambar Lal V/s. Dodee Singh A.I.R. 1924 All. 503 and the judgment which it follows show the Courts have great difficulty in devising a suitable remedy. Section 151 provides an emergency power which it ought not to be necessary to resort to in a class of cases which are of every day occurrence as these are. But even if Order 9, Rule 9 does not apply, I am not prepared to hold that, if a party prosecuting a restoration application is genuinely prevented from appearing, he is left without a resource. To hold this might be to work great injustice. A man might, for instance, accidentally break his leg on the way to Court.

(2.) If the view contended for by the applicant is correct, this accident would lead to his suit remaining irrevocably dismissed. The attention of the learned Judges who decided Pitambar Lal V/s. Dodee Singh A.I.R. 1924 All. 503 was not directed to Section 151, Civil P.C. If there is no other remedy we think that that section will apply in a case such as this.

(3.) We accordingly refuse to interfere and reject this application with costs including fees on the higher scale. Sulaiman, J.