Section 151 of the Code of Civil Procedure can be invoked to restore an application to restore a suit to file which has been dismissed for default.

KOTVAL C. J.-This petition has been referred to a Division Bench for decision by Mr. Justice Tulzapurkar because the learned Judge entertained some doubt whether he has the power to grant the application made before him. It virtually raises the following question:

"Where an application to restore a suit to file under Order IX rule 9 is itself dismissed for default, whether a further application to restore the application under Order IX rule 9 to the file will at all lie?"

The learned Judge felt that in view of the decision of this Court in D. B. Manke v. B. Walwekar (1) such an application might not lie, but there are conflicting authorities on the question.

2. The circumstances under which Miscellaneous Petition No.1 of 1966 came to be filed are as follows: The applicant is the liquidator of a company known as the Laxmi Investment Co. Private Ltd. of Akola. He was appointed the liquidator of the company after an order of winding up was passed on February 12, 1962. This company had entered into an agreement with one Tarachand and others to purchase the immovable property from the said Tarachand and others for a sum of Rs. 60,000 on January 23, 1957. The agreement was subsequently modified in December 1957 whereby the company agreed to pay Rs. 25,000 more to the vendors. The vendors did not fulfil their agreement and the company filed a suit (C. S. No.4 of 1960) for specific performance and damages on the footing of the agreement. The suit was filed on June 26, 1960 and was fixed before the Civil Judge, Senior Division, Khamgaon on February 22, 1961. On that date the advocate for the plaintiff reported no instructions and withdrew from the suit in consequence of which the Civil Judge dismissed the suit for default. On March 22, 1961, the company made an Application No. 28 of 1961 for restoration of the suit to the file under Order IX, rule 9 of the Code of Civil Procedure. Before that application could be heard, the company was ordered to be wound up and the liquidator was put in charge of the affairs of the company. According to the liquidator, however, he knew nothing of the pendency of the suit or of the application for restoration filed on March 22, 1961. That application (Application No. 28 of 1961) for restoration of the suit came up for hearing before the Civil Judge on April 19, 1962, and no. one being present on behalf of the company the application was dismissed. The Court did not know that a. liquidator had been appointed and the liquidator did not know that the suit had been filed and dismissed or that the application for its restoration was pending.

3. The present application which under certain circumstances, has come to be renumbered as Application No.1 of 1961, was filed by the liquidator on behalf of the company on June 19, 1962, praying that the order of dismissal of the application to set aside the ex parte decree dated April 19, 1962, should be set aside and the Miscellaneous Application No. 28 of 1961 should be restored to the file. The liquidator has alleged that he had no knowledge whatever of the pendency of the suit or of its dismissal for default nor of the fact that an application to restore the suit to the file had been made and was pending on the file of the Civil Judge. He alleged that he came to know of the pendency of the suit and the application only on June 18, 1962, from one of the former directors of the company one Amratlal Vyas and thereupon he acted very promptly. He alleged that he sent a telegram to the Clerk of the Court of the Civil Judge, Senior Division, Khamgaon, informing him that he had learnt about the dismissal of the application for restoration and that he had instructed the companys advocate, Mr. Bhate of Khamgaon to make an application for restoration of the said Application No. 28 of 1961. This application was filed on behalf of the liquidator by the said advocate on June 19, 1962 and was followed up three days later by an application for condonation of one days del