The main legal point established in the judgment is that an assignee from an appellant has the legitimacy to file an application for restoration of an appeal dismissed for default, and S.146 of C.P.C. allows a person claiming under a party to the appeal to prefer, continue, or defend an appeal, although not being a party to the suit if they satisfy the other requirements of the Section.

Varghese KalIiath, J.

This Second Appeal comes up before us on a reference by our learned Brother Justice P. Krishnamoorthy. In the reference, His Lordship doubted as a preliminary point as to whether an assignee from the appellant is entitled to maintain an application under Order XLI rule 19 of the Code of Civil Procedure (hereinafter referred to as' C.P.C.'). His Lordship also observed that whether Order XL1II Rule 1A will enlarge the scope of S.105(1) of C.P.C. These questions, His Lordship thought, required an authoritative pronouncement by a Division Bench of this Court. So the Second Appeal was referred for consideration

by a Division Bench.

2. Defendant in a suit for declaration of title and for setting aside an order of Magistrate passed under S.145 of the Code of Civil Procedure is the appellant. Plaintiffs also sought for recovery of the property scheduled in the plaint.

3. Initially the suit was dismissed on 19-2-1977. In the suit, defendant contended that he is a tenant and so the matter was referred to the concerned Land Tribunal. The Land Tribunal found that the tenancy claimed by the defendant is valid. Adopting the finding of the Land Tribunal, the trial court dismissed the suit. Plaintiffs filed an appeal, A.S. No. 95/78. That appeal was remanded by the appellate court by its judgment dated 18-12-1979. By its judgment, the appellate court directed the Munsiff to consider the question of tenancy. The Munsiff, after remand, considered the question of tenancy on the evidence before him and finally found the tenancy in favour of the defendant and dismissed the suit, on 31-10-1980.

4. The 2nd plaintiff filed an appeal on 18-3-1981 as A S. No. 101/1981. The 2nd plaintiff (1st respondent herein) assigned his right to a stranger on 8-11-1982. That stranger is the 2nd respondent in this appeal. After assignment, the 2nd respondent herein who is the assignee from the 1st respondent/ appellant in AS. No. 101/81, wanted to prosecute the appeal. On enquiry, he came to know that the appeal was dismissed for default on 25-1-1983. The 2nd respondent herein filed three Interlocutory applications, LA Nos. 193,194 and 195 of 1983. LA No. 193/83 was for restoration of the appeal dismissed for default, LA No. 194/83 was an application under Order 22 Rule 10 of the Code of Civil Procedure to implead the 2nd respondent herein as supplementary additional 2nd appellant in the appeal and LA No. 195/83 is an application to amend the appeal memorandum by making necessary changes in the cause title

5. Appellant herein - the defendant - filed counter affidavits in the said Interlocutory applications. It is contended that there is no legal provision by which the 2nd respondent herein can prosecute the appeal or rather can restore the appeal dismissed for default and so it was contended that all the applications have to be dismissed. The lower appellate court considered the question rather elaborately both on merits and on the questions of law raised and held that the appeal can be restored and that the 2nd respondent can be impleaded as supplemental appellant. This decision, it is contended by the appellant, is not in accordance with law and counsel for the appellant was able to persuade the learned single judge to refer the questions to be decided by a Division Bench.

6. The chief question is whether an assignee of the subject matter of the appeal from an appellant can restore an appeal dismissed for default while assignee was not in the party array. The appeal in this case was dismissed on 25-1-1983 on the ground that there was no representation by counsel or appellant. The 2nd respondent herein got assignment of the right of the appellant in the lower court on 8-11-1982. Of course, an application for restoration can be filed only under Order 41 Rule 19 of C.P.C. Order 41 Rule 19 of C.P.C. reads thus:

"Where an appeal is dismissed under rule 11, sub-rule (2), or rule 17 or rule 18, the appellant may apply to the appellate Court for