V. Nath, J.

Heard Mr. Manojeshwar Prasad Sinha, learned senior counsel appearing for the petitioners as well as the learned counsel appearing for the different sets of opposite parties including the opposite party-State of Bihar.

2. This revision application has been filed against the order dated 30.03.2010 passed in Miscellaneous Case No. 20/2003 by which the learned court below has dismissed the miscellaneous case mainly on the ground of bar of limitation and also giving findings on the merits as well.

3. The facts relevant in the present context are that a T.S. No. 12/1989 was filed by the petitioners for declaration of their right, title, interest and possession over the suit land alongwith consequential reliefs. However, this suit was dismissed for default on 18.01.1996 for non-compliance of the order for filing the requisites for registered notice. From the order dated 18.01.1996 (Annexure-1) it transpires that on the said date neither the plaintiffs nor the defendants were present when the suit was called out. Thereafter the plaintiffs filed Miscellaneous Case No. 09/1996 for restoration of the suit under Order 9 Rule 4 C.P.C. However, this Miscellaneous Case No. 09/1996 was also dismissed for default for non-appearance of the plaintiff-petitioner on 12.09.2003 (Annexure-2). Thereafter the plaintiffs filed Miscellaneous Case No. 20/2003 praying for restoration of the Miscellaneous Case No. 09/1996. This miscellaneous Case was filed on 14.11.2003 under the provision of Section 151 C.P.C. A petition for condonation of delay was also filed under Section 5 of the Limitation Act. By the impugned order the learned court below has held that the Miscellaneous Case has been filed beyond the prescribed period of 30 days and no sufficient cause has been established by the plaintiff-petitioners for condonation of delay. The learned court below has also made observations expressing doubts over the case of the plaintiffs for restoration as pleaded. Accordingly, the miscellaneous case has been dismissed by the impugned order.

4. After considering the materials on record and the submissions on behalf of the parties, it is manifest that the Miscellaneous Case No. 20/2003 was filed on 14.11.2003 praying for restoration of the Miscellaneous Case No. 09/1196 which was filed under Order 9 Rule 4 C.P.C. for restoration of the T.S. No. 12/1989. It is also apparent that the Miscellaneous Case No. 09/1996 was dismissed for default on 12.09.2003 and thereafter the Miscellaneous Case No. 20/2003 was filed on 14.11.2003 within a period of two months. This Miscellaneous Case No. 20/2003 has been filed under Section 151 C.P.C. and therefore the learned court below has wrongly held that the period of limitation for filing this miscellaneous case would be 30 days from the date of dismissal. From bare perusal of the provision as contained in Article 122 of the Limitation Act, it is evident that the said provision is not attracted in a case where the petition under Section 151 C.P.C. has been filed for restoration of a restoration application. This view finds support from the decision of this Court in Siban Mahto v. Ramdhani Singh, A.I.R. 1972 Patna 217 where under similar circumstances it has been held that such petition under Section 151 C.P.C. for restoration of a restoration application would be governed by the residuary Article 137 of the Limitation Act providing for a period of three years from the date when the right to apply accrues. In the present case the fact has not been disputed on behalf of the opposite parties that the Miscellaneous Case No. 20/2003 has been filed within three years of the date of dismissal of the Miscellaneous Case No. 09/1996 praying for restoration of the Miscellaneous Case No. 09/1996.

5. It is thus held that the learned court below has committed error of jurisdiction and material irregularity in dismissing the miscellaneous case as barred by limitation. From the impugned order it further appears that though the