ORDER

Mr. Vaidehi Raman Prasad Singh, Ld. Advocate is present on behalf of the petitioner and Mr. Dharmesh Kumar Srivastava, Ld. Advocate is present on behalf of Respondents No. 1 and 2. No body appears on behalf of other Respondents despite valid service of notice upon them.

Interlocutory Application No. 6097/2016

2. This I.A. has been filed for condonation of delay in filing the present revision petition. In view of the averment made in the Interlocutory Application, the delay is condoned. Accordingly, the I.A. 6097/2016 stands allowed.

Civil Revision No. 100 of 2016

3. The present Civil Revision has been preferred impugning the order dated 07.11.2015 passed by Ld. District Judge, Sitamarhi in Miscellaneous Case No. 1/2015 (Dinesh Thakur vs. Amitabh Thakur & Ors) whereby the Ld. District Judge has dismissed the Misc. Case No.1/2015 filed by the petitioner herein for restoration of Misc. Case No. 15/2011 on the ground that the Misc. Case was not filed within one month from the date of dismissal and, in fact, it was filed after delay of 70 days which is not properly explained by the petitioner.

4. Ld. counsel for the petitioner submits that Ld. court below was erroneously under impression that limitation to file restoration application of previous restoration application being dismissed in default is 30 days as per Article 122 of the schedule to the Limitation Act, 1963 and hence the Ld. court below has committed error of law in holding that Misc. Case No. 1/2015 has been filed beyond the limitation period. In fact, in the given facts and circumstances, it is Article 137 which would be applicable as per which limitation period is three years, because the Misc. Case No. 1/2015 was not filed for restoration of any suit/appeal dismissed for default, but for restoration of Misc. Case filed for restoration of previous restoration application and which was dismissed for default.

5. Per contra, Ld. counsel for the respondents No. 1 and 2 defends the impugned order submitting that there is no illegality or infirmity in the impugned order.

6. I considered the submissions advanced by both the parties and perused the case record.

7. The impugned order dated 07.11.2015 was passed by Ld. District Judge, Sitamarhi in Misc. Case No. 1/2015 which was filed on 02.01.2015 for restoration of previous restoration application bearing Misc. Case No. 15/2011 which was dismissed for default on 24.11.2014. Misc. Case No. 15/2011 was filed for restoration of Misc. Appeal No. 06/2008 which was dismissed for default. As such, it is found that the Misc. Case No. 1/2015 was filed within 39 days of the dismissal of Misc. Case No. 15/2011. Now, the question is whether this Misc. Case No. 1/2015 was filed within limitation period as prescribed by Limitation Act or not.

8. After perusal of the Schedule to the Limitation Act, it is found that there is no prescription of any limitation period for such application which has been filed for restoration of previous application filed for restoration of suit dismissed for default. Article 122 of the Schedule to the Limitation Act prescribes limitation of 30 days for filing application for restoring a suit or appeal or application for review or revision, dismissed for default of appearance or for want of prosecution or for failure to pay costs of service of process or to furnish security for costs.

9. As such, Article 122 does not apply to restoration application filed for restoration of previous restoration application. In such situation, residuary Article 137 of the Schedule to the Limitation Act comes into play under which limitation of three years has been provided for any other application for which no period of limitation is provided elsewhere in the Schedule.

10. The aforesaid view is fortified by Manoj Kumar Vyas & Ors. vs. State of Bihar & Ors. as reported in (2016) 4 PLJR 25 wherein Hon’ble Patna High Court in similar situation has held that from bare perusal of the provision as contained in Article 122 of the Limitatio