The revival of interlocutory orders on restoration of a suit or petition which was dismissed for default is automatic unless the Court expressly or impliedly excludes its operation.

Subrata Talukdar, J.

1. In this application under Article 227 of the Constitution of India the petitioner CESC Limited Challenges Order dated 18th July, 2009 passed by the Ld. 3rd Additional Civil Court (Junior Division) Alipore in Title Suit No. 225 of 2002.

2. Sri Subir Sanyal, Ld. Counsel for the petitioner has also filed CAN No. 12421 of 2013 for restoration of the order dated 12th December, 2013 passed by an Hon'ble Single Bench of this Court.

3. It transpires from the record that CO 3094 of 2009 was dismissed for default by the order dated 12th December, 2013. By the said order the Hon'ble Single Bench was also pleased to vacate the interim order granted earlier by this Court dated 2nd March, 2010 staying all further proceedings in Title Suit No. 225 of 2002 pending before the Ld. 3rd Additional Civil Court (Junior Division), Alipore.

4. The petitioner has also filed affidavit of service which is taken on record. In spite of service none appears for the opposite party.

5. Sri Sanyal has submitted at length on the point that when a prayer is made for recall of the order of dismissal and for restoration of the interim order which stood vacated by the said order of dismissal, on such prayer for recall being allowed both the revisional application along with its interim order stood revived.

6. In support of his submission Sri Sanyal relies upon the judgment of the Hon'ble Apex Court reported in AIR 2004 SC 3992 in the matter of Vareed Jacob v. Sosamma Geevarghese and Others. Drawing the attention of this Court to the majority view contained at paragraphs 20 and 21 of the said Judgment, Sri Sanyal has argued that the revival of interlocutory orders on restoration of a suit or petition which was dismissed for default is automatic unless the Court expressly or impliedly excludes its operation.

7. Paragraphs 20 and 21 of Vareed Jacob's Judgment (supra) read as follows:-

"20. In the case of Nandipati Rami Reddi v. Nandipati Padma Reddy (supra), it has been held by the Division Bench of the Andhra Pradesh High Court that when the suit is restored, all interlocutory orders and their operation during the period between dismissal of the suit for default and restoration shall stand revived. That once the dismissal is set aside, the plaintiff must be restored to the position in which he was situated, when the Court dismissed the suit for default. Therefore, it follows that interlocutory orders which have been passed before the dismissal would stand revived along with the suit when the dismissal is set aside and the suit is restored unless the Court expressly or by implication excludes the operation of interlocutory orders passed during the period between dismissal of the suit and the restoration.

21. In the case of Nancy John Lyndon v. Prabhati Lal Chowdhury, reported in 1987 (4) SCC 78, it has been held that in view of Order 21, Rule 57 , C.P.C. it is clear that with the dismissal of the title execution suit for default, the attachment levied earlier ceased. However, it has been further held that when the dismissal was set aside and the suit was restored, the effect of restoring the suit was to restore the position prevalent till the dismissal of the suit or before dismissal of the title execution suit. We repeat that this judgment was under Order 21, Rule 57 whose scheme is similar to Order 38, Rule 11 and Rule 11-A, C.P.C. and therefore, we cannot put all interlocutory orders on the same basis."

8. Further drawing the attention of this Court to the minority view in Vareed Jacob's Judgment (supra) Sri Sanyal submits that the Hon'ble Single Judge was pleased to hold the view that in order to decide the issue of revival of the interlocutory relief consequent to restoration of the suit, petition or proceeding, it would not be correct to hold that the attachment proceeding is in effect and substance different from an order of injunction on the ground that the former is a part of the execution process.

9. Paragraph 67 of the minority view