A second application to restore a suit dismissed for default is maintainable under Order 9, Rule 9, C. P. C. itself.

ANANTANARAYANA AYYAR, J.

( 1 ) A Veeraraghava Raya Chowdhry, as sole plaintiff, filed O. S. No. 3 of 1954 in the Court of the Subordinate Judge, Chittoor. On 18-3-1956, the learned Subordinate Judge dismissed the suit for default. Plaintiff filed I. A. No. 141 of 1956 for setting aside that order of dismissal. Ultimately, I. A. No. 141 of 1958 came up for enquiry on 27-7-1959. On that day, plaintiff was not present in person or by Advocate. The learned Subordinate Judge dismissed I. A. No. 141 of 1956 for default. The very same day, the Advocate, Sri N. K. Viswanathayya appeared for plaintiff and filed I. A. No. 322 of 1959 praying for restoration of I. A. No. 141 of 1956 to file. That petition was accompanied by an affidavit of the Advocates clerk stating that the plaintiff had left the vakalat with Sri N. K. Viswanathayya, that the latter could not attend Court in time due to some personal inconvenience and that the clerk himself went to the Court of the District Munsif in the same town of Chittoor to attend to other work and later came to the Sub-Court and found that I. A. No. 141 of 1956 had been dismissed for default. The learned Subordinate Judge held that if the Advocates clerk had worked elsewhere, that clerk should have left instructions with some colleagne another Advocates clerk-- that the failure of the Advocates clerk to do so amounted to negligence and that still he-- (the learned Subordinate Judge--) did not think the case suitable one for penalising the plaintiff and, therefore, allowed the petition--I. A. No. 322 of 1959--on payment of Rs. 15 as day costs on or before 12 noon. The petitioner, who was the first defendant in O. S. No. 3 of 1954, fell aggrieved with that order in I. V No. 322 of 1950 and filed this revision petition praying for setting it aside.

( 2 ) SRI Sankara Sastry, the learned Advocate for the petitioner, has raised the following contentions: 1. That the negligence of file Vakils clerk could not be excused simply on the ground that otherwise the plaintiff would have to suffer and would ho penalised. 2. The second application dues not lie in law 3. On merits, the order of the lower Court is not sustainable as there was negligence.

( 3 ) CONTENTION No. 2:--In Thakur Prasad v. Fakirullah, (1895) ILR 17 All 106 (PC), two questions arose before the Privy Council re-garding the striking of an execution application from the list of pending cases namely, (1) whether a prior application had been annulled by being struck off or still remained a fresh starting point for limitation in respect of a renewal of the application within three years; and (2) whether or not the High Court has been right in applying the provisions of Section 373 of the C. P. C. of 1882 - (corresponding to Order 2, Rule 2 of the new C. P. C. , V of 1908)--on the construction that they had been rendered applicable to petitions for execution by Section 647 in the old C. P. C. of 1882--corresponding to Section 141 of the new C. P. C. V of 1908. Their Lordships stated that they had no hesitation in agreeing with the Subordinate Judge that the new application was not barred by time. On question No. 2, their Lordships observed as follows; (at p. 111) "it is not suggested that Section 373 of the C. P. C. would of its own force apply to execution proceedings. The suggestion is that it is applied by force of Section 647. But the whole of Chap. XIX of the Code consisting of 121 sections, is devoted to the procedure in execution, and it would be surprising if the framers of the Code had intended to apply another procedure, mostly suitable, by saying in general terms that the procedure for suit should be followed as far as applicable. Their Lordships think that the proceedings spoken of in Section 647 include original matters in the nature of suits such as proceedings in probates, guardianships, and so forth, and do not include executions. . . . . And it is clear, both from the Code itself and from the provisions of the Limitation Act of 18

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