K.B.N.SINGH, J.

1. All these three revision applications have been referred to a Full Bench of five Judges, as the correctness of the Full Bench decision of three Judges, in the case of Doma Choudhary V/s. Ram Naresh Lal, AIR 1959 Pat 121 has been doubted in view of later decisions of the Supreme Court in the case of Mahanth Ram Das V/s. Ganga Das, AIR 1961 SC 882, and in the case of Manohar Lal Chopra V/s. Rai Bahadur Rao Raja Seth Hira Lal, AIR 1962 SC 527. All these three applications have been heard together and this judgment will govern all of them.

2. In all these three cases the question involved is whether an application under S. 151 is maintainable for restoring an application under O. IX, R. 9, or O. IX, R. 13 or an application under O. XLI, R. 19 of the Civil P. C. (hereinafter referred to as the Code), which has been dismissed for default.

3. To appreciate the point involved, I shall state shortly the facts of the first case, namely, Civil Revision No. 713 of 1970. The petitioners in this civil revision application instituted Title Suit No. 8 of 1964 in the court of the Munsif, Buxar, for declaration that the sale deed dated the 13th Jan. 1940, in respect of 0.16 acre of land under Khata No. 102 of village Bhatsari, police station Brahampur, executed by Chabila Rai in favour of Hashim Mian, was forged, fabricated, illegal and void on the grounds stated in the plaint. The plaintift-petitipners are the sons and grandsons of Gharbharan Rai and his brother Chhabila Rai. The defendant-opposite party filed a written statement and their case was that Chhabila Rai was separate from the branch of Ramyad Rai and that the sale deed executed by Chhabila Rai was a good transaction. The suit was dismissed for default on the 3rd July, 1969.

4. On the 5th July, 1969, an application under O. IX, R. 9 of the Code was filed on behalf of the plaintiffs for setting aside the order of dismissal of the suit for default, which was registered as Miscellaneous Judicial Case No. 3 of 1969 (Annexure 1), on the ground that on the 3rd July, 1969, Bhola Rai (petitioner No. 4) had filed Hazri on behalf of the plaintiffs, but, at about 1 P.M. he got severe pain in his stomach and he rushed to a doctor, without meeting his lawyer or his clerk. After his condition improved, he came back to the court on that very date and learnt that the case had been dismissed for default. As ill luck would have it, this Miscellaneous Judicial Case No. 3 of 1969 was also dismissed for default on the 12th Sept. 1969. The petitioners then filed an application under S. 151 of the Code, on affidavit, for restoration of Miscellaneous Judicial Case No. 3 of 1969 (Annexure 2), stating that on the 29th Aug. 1969, the date fixed in the Miscellaneous Judicial Case, Shivdhari Rai (petitioner No. 3), who attended the court, was told by the Bench Clerk that 13th Sept. 1969, had been fixed as the date in the case and when Shivdhari Rai attended the court on the 13th Sept. 1969, and filed Hazri on behalf of the petitioners, he was told by the Bench Clerk that his case had already been dismissed on the previous day, i.e., the 12th Sept. 1969. The petitioners case is that on the 12th Sept. 1969, even the defendants were not personally present and as it has transpired, when the case was called out, the lawyer for the defendants-opposite party appeared and a Hazri was filed by the lawyer on behalf of the defendants and a petition for time was filed on behalf of the lawyer of the plaintiffs. (Copies of the petition for time and the Hazri have been filed as Annexures 4 and 5 respectively). The petitioners case is that they were not guilty of any laches on their part as they had been misled by the Bench Clerk of the Court, as a result of which Miscellaneous Judicial Case No. 3 of 1969 was dismissed for default. The learned Munsif, without taking any evidence and without examining the Bench Clerk, dismissed the restoration petition, observing that the petitioners remedy against th