The period of limitation for making an application for restoration of a suit dismissed for non-prosecution is calculated from the date on which the application is moved before the Court and not from the date the notice of motion is taken out.

BIMAL CHANDRA BASAK, J.

( 1 ) THIS appeal arises out of an order dt. 1st of Oct. 1985 whereby a learned single Judge of the Original Side of this Court allowed the application made by the respondent-plaintiffs for setting aside and recalling the order dt. 26th of July 1985 passed by the learned Judge. The facts of this case, so far as relevant for the purpose of the Appeal herein, are as follows : facts.

( 2 ) ON or about 13th of March, 1962 the predecessor-in-title of the plaintiff-respondents herein instituted the suit against the defendant-appellants, inter alia, praying for a decree for specific performance of an agreement for sale dt. 8th July 1961 as modified by subsequent agreement and for other reliefs. The defendant-appellants filed the written statement. Ultimately the suit appeared in the daily list of the learned trial Judge on the 26th of July, 1985 when the appellant-defendants appeared but the plaintiffs-respondents did not appear and accordingly the suit was dismissed for default. On the 19th of Aug. , 1985 the plaintiffs-respondents affirmed an application for recalling and/or setting aside the order dt. 26th of July, 1985 and for placing the suit in the peremptory list for hearing. From an endorsement made in the original petition it appears that this application was "noted as made" on 20th of Aug. , 1985 i. e. it was moved before the Court on that day though the Notice of Motion as required to be taken out under the Original Side Rules in such cases, was taken out on 3rd of Sept. , 1985 and it was made returnable on 9th of Sept. , 1985 on which date directions were given for filing of affidavits. An affidavit-in-opposition was filed by the defendant-appellants but no affidavit-in-reply was filed. As already stated, ultimately this matter was heard on merits and by an order dt. 1st of Oct. , 1985, upon payment of 30 GMS. as cost, the earlier order was recalled and the suit was directed to appear in the list of 18th of Dec. , 1985. It was further recorded that a cheque for Rs. 510/- was handed over to Mr. Swapan Kumar Dutt, Advocate-on-record for the defendants. Admittedly, subsequently the said sum was returned to the plaintiffs-respondents. Thereafter this Memorandum of Appeal was filed with the leave of the Court without the certified copy subject to the question of limitation and maintainability and there was an order in terms of prayer (c) till the disposal of the application, that is, the order appealed from was stayed till the disposal of the appeal. Arguments - Preliminary point regarding maintainability of the Appeal.

( 3 ) ON behalf of the plaintiffs-respondents a preliminary point is taken. It was submitted that the order appealed from was an order passed under O. 9, R. 9 of the CPC and that it is not an appealable order in view of O. 43 of the CPC. It was further submitted that it was also not a "judgment" within the meaning of Cl. 15 of the Letters Patent and accordingly it is not appealable. In this context, reliance was placed on Hirdhamun Jha v. Jinghoor Jha (1880) ILR 5 Cal 711, Maharaj Kishore Khanna v. Kiran Shashi Dasi, AIR 1922 Cal 407, Tulsiram Bhagwandas v. Sitaram Srigopal, AIR 1959 Cal 389 (paragraphs 20, 21 and 22), the majority judgment in Shah Babulal Khimji v. Jayaben D. Kania AIR 1981 SC 1786 and the Full Bench decision in Mathura Sundari Dassi. v. Haran Chandra Shah, AIR 1916 Cal 361. Arguments - On behalf of the appellants.

( 4 ) ON behalf of the appellants it was admitted that O. 43, C. P. C. does not state that the order restoring the suit which has been dismissed for default was appealable but it was submitted that as in this appeal the question of jurisdiction of the Court in making the impugned order and the question of limitation are involved, this is a "judgment" within the meaning of Cl. 15 of the Letters Patent. In this context reliance was placed on a passage from the judgment of A. N. Sen. J. in the case of Shah Babulal Khimji v. Jayaben D. Kania. reported in AIR

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