Judgment

1. This appeal is directed against a judgment and order dated 11.8.2000 passed by a Division Bench of the Madhya Pradesh High Court at Jabalpur in MCC. No. 482 of 1999 whereby and whereunder it refused to entertain an application filed by the appellants herein purporting to be under Section 151 of the Code of Civil Procedure, 1908 (for short 'C.P.C.') for recalling of an order passed by a learned Single Judge of the said Court dated 5.5.1999 passed in Civil Revision No. 2761 of 1998 which in turn arose out of an order dated 3.11.1998 passed by the Additional District Judge, Shahdol, Madhya Pradesh in Civil Suit No. 2-A of 1993 dismissing an application filed by the respondent herein under Order 32 Rule 15, C.P.C.

2. The plaintiff-respondent filed a suit against the appellants herein for partition of certain immovable properties. The appellant No.1 herein at the relevant point of time was aged 87. Alleging inter alia that she had lost her ability her ability to understand and further is not capable to give instructions to her lawyer or anybody else relating to the said suit, a prayer was made by the respondent herein that she be summoned in the Court so as to enable the Court to inquire about her state of mind and upon medical examination, if necessary a guardian be appointed for defending her in the suit.

3. The learned trial Judge by reason of the order dated 3.11.1998 dismissed the said application stating

".... But in the verification para of her affidavit Anguri Chaudhary has verified para 1-3 and 4 of the affidavit on the basis of her personal knowledge and para 2 on the basis of knowledge received from her relations and known persons. But Anguri Chaudhary has neither mentioned the names of her relations and known persons nor disclosed the time and place of receiving the knowledge from them. No explanation has been given for inordinate delay of 49 months in bringing the fact of forged signature of Kasturibai on her written statement filed on 31.8.94. In this case Kasturibai is defendant No. 1 but in I.A. No. 17 and affidavit in support she has been referred as "defendant No.3" and, "defendant No.3 Kasturibai". The affidavit of Anguribai filed in support of IA. No. 17 is not reliable in these circumstances. Therefore IA. No. 17 is dismissed".

4. Questioning the said order, the respondent herein filed a revision application in terms of Section 115 of C.P.C. before the High Court. The said application was marked as Civil Revision No. 2761 of 1998. The High Court by reason of its order dated 5.5.1999 allowed the revision application directing

"... The applicant/plaintiff has filed the instant Civil Suit against the non applicants/defendants for partition, possession and rendition of accounts. The non applicant No. 1 is old lady of 87 years of age and she has developed forgetfulness. Therefore, the applicant had made an application under O.32 R.15, CPC, for appointment of a guardian for defending her in the suit. The appointment of guardian would not cause any prejudice to either parties. The trial Court acted with material irregularity in rejecting the application of the applicant under O.32, R.15 CPC. The impugned order, therefore cannot be sustained. Accordingly it is set aside and in the result, the revision succeeds and is allowed".

5. The appellants herein filed an application for recalling of the said order, inter alia, on the ground that notices upon them were not served. Curiously enough, the said application, instead of being placed before the learned Single Judge who had disposed of the civil revision application, was placed before a Division Bench. The Division Bench considered the said application to be an appeal against the order of the learned Single Judge and dismissed the same by reason of the impugned order.

6. Shri Gaurav Jain, the learned counsel appearing on behalf of the appellants has raised a short question in support of this appeal. The learned counsel would urged that having regard to the