The appellate authority has the power to re-admit an application to readmit an appeal dismissed for default, in line with the provisions of the Kerala Land Reforms Act, 1963 and the Code of Civil Procedure.

1. The petitioner is the landlord. The first respondent claims to be a tenant. The first respondent's application for purchase of kudikidappu right was dismissed by the Land Tribunal, Chawghat by its Order in O.A. No. 3223 of 1970. Against that order the first respondent' filed an appeal (A.A. No.2416 of 1977) in terms of S.102 of the Kerala Land Reforms Act, 1963 (the "Act"). That appeal was dismissed for default on 22-4-1978. The first respondent filed an application (I.A. No. 693 of 1978) for restoration of the appeal. That application was also dismissed for default by order dated 19-12-1979. The first respondent again filed an application (I. A.No. 417 of 1979) praying for restoration of his application for restoration of the appeal. By the impugned order Ext. P3 this application was allowed, and the original restoration application (I.A. No. 693 of 1978) was posted for consideration.

2. The petitioner's counsel Mr. Krishna Prasad submits that the appellate authority has no power to order restoration of an application praying for the restoration of an appeal, when the application for restoration of the appeal had been dismissed for default. Counsel says that while the appellate authority has, as recognised under S.102 of the Act, the appellate powers of a court under the Civil Procedure Code, the appellate authority having limited jurisdiction has no inherent power so much so that it cannot order restoration of an application which had been dismissed for default, when the prayer in that application was for restoration of the appeal which also had been dismissed for default. Counsel refers to a number of decisions in support of his contention that the power of the appellate authority is not wide enough for the purpose of making an order such as the one that has been made by the appellate authority.

3. S. 102 (3) of the Act says:

"102(3): In deciding appeals under sub-section (1) the appellate authority shall exercise all the powers which a court has and follow the same procedure which a court follows in deciding appeals against the decree of an original court under the Code of Civil Procedure, 1908."

This means the appellate authority can exercise all the powers of an appellate court under the Civil Procedure Code. S.141 of the CPC. says:

"141. Miscellaneous Proceedings The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

Explanation In this section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under Art.226 of the Constitution."

This shows that the appellate court has under the CPC. all the powers specified under 0.41 and those under 0.9: (See also S.107 CPC.: See 1976 M.P.136 (F.B.):1966 SC. 1888,1891).

4. 0.41 R.19 of the CPC. says

"0.41. R.19: Re-admission of appeal dismissed for default (1) Where an appeal is dismissed under R.11, sub-rule (2), or R.17 or R.18, the appellant may apply to the Appellate Court for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit."'

Counsel's argument is that although the power to re-admit is vested in an appellate court and therefore is available to the appellate authority in terms of S.102 of the Act, there is no power to re-admit an application to readmit an appeal. I think this is reading the Section far too narrowly and technically. It is not because the appellate authority has any inherent power akin to that of a civil court as preserved under S.151 CPC., but because, as a statutory authority, it has all the necessary implied powers to give effect to the statute, subject to such restrictions as are statutorily or judicially imposed upon it. An authority is a creature of the sta