The main legal point established in the judgment is that the lack of provision for restoration of an application under Order 9 Rule 13 of the CPC can be overcome by treating the application as one under Section 151 of the CPC.

ORDER :

1. The instant Civil Revision is directed against the order dated 26.7.2019 whereby application for restoration of MJC No.15/2014, which was an application under Order 9 Rule 13 read with Section 151 of the CPC and Section 5 of the Limitation Act, 1963, has been dismissed holding that there was no such provision for restoration of the said application, therefore, the application was held to be not maintainable and accordingly, the original application (MJC No.15/2014) also stood dismissed.

2. Facts of the case are that the respondents/decree holders had preferred a civil suit No.23-A/2010, which was decided ex-parte on 28.2.2014. So the petitioners moved an application under Order 9 Rule 13 read with Section 151 of the CPC on 29.10.2014 to set aside the ex-parte decree on the ground that the summons were not served on them, as they were living separately at Raipur and the plaintiff was aware about the said fact. When he came to know about the said ex-parte decree, he preferred an application along with Section 5 application (under the Limitation Act) for condonation of delay, which was registered as MJC No.15/2014. The said MJC No.15/2014 was dismissed for want of prosecution on 14.3.2018. On 16.4.2018, the petitioners had moved an application for restoration of MJC No.15/2014. The said application was initially allowed on 1.5.2019 and MJC No.15/2014 was restored to its original number. However, while considering the original application under Order 9 Rule 13 read with Section 151 of the CPC and Section 5 of the Limitation Act, the earlier order was reviewed and it was observed that there was no such provision for restoration of application which was filed under Order 9 Rule 13 read with Section 151 CPC. So without further consideration, the original application was dismissed.

3. Heard learned counsel for the petitioners at length and perused the record.

4. As the trial Court itself restored the original application filed under Order 9 Rule 13 of the CPC and MJC No.15/2014 was restored, against the said order no review or any application was moved. Therefore, there was no occasion to review such order, as the said order has already attained finality and the observation made in the impugned order that restoration of application for setting aside ex-parte decree when dismissed on the date of hearing, to set aside the said order and for restoration of said application, though in absence of any express provision for dismissing the application in default, application for restoration must be treated as one under Section 151 of the CPC. It is settled law that litigant should not suffer for the fault of his counsel.

5. In the matter of Continental Construction Ltd. Vs. Continental Float Glass Ltd., {AIR 1997 DELHI 147}, in such situation, application under Section 151 CPC is held to be maintainable and in para-6, the following was observed:-

“6. ………………………………………………………… ………………………………………………………… ………………………………………………………… ………………………………………………………… ………………………………………………………... Having regard to the above discussion, I am of the opinion that the provisions of Order 9 Rule 13, Civil Procedure Code are attracted where objections to the award are dismissed ex-parte. In any event the instant application under Order 9 Rule 13, CPC is to be treated as one under Section 151, CPC as Order 9 Rule 13, CPC permits the Court to set aside an ex-parte decree if it is shown that the summons were not duly served or that the defendant was prevented from appearing due to any sufficient cause when the suit was called for hearing. The present application is not for setting aside the ex-parte decree but for restoration of I.A. 2800/95 for setting aside the ex-parte decree, which application was dismissed on May 15, 1994 in default of appearance of the applicant/defendant. The Code of Civil Procedure contains no express provision for dismissing an application under Order 9 Rule 13, CPC for default of appearance. If such an application is dismissed, the order dismissing the