A court has the power to restore an appeal that has been dismissed for default, if the dismissal was an error.

BAPNA, J.

( 1 ) THIS is a revision by the plaintiffs in a suit for redemption. The plaintiffs, Vyas magraj and others, sued Harnarayan and Jainarayan for redemption of certain house property situated at Jodhpur alleged to have been mortgaged in St. 1923 for Rs. 200/- (Bijaishahi ). The defendants denied the right of redemption claimed by the plaintiffs, pleaded lack of jurisdiction in the Court and claimed rs. 1225/- as cost of improvements. The trial Court, after inquiry, passed a preliminary decree for redemption on payment of the mortgage amount plus rs. 1225/- spent on improvements. The plaintiffs filed an appeal urging that they were not liable for the cost of improvements. The defendants also filed an appeal urging that the lower Court had no jurisdiction and that the plaintiffs were not entitled to any relief. The appellate Court accepted the appeal of the defendants and directed return of plaint to be presented to a Court having jurisdiction. The appeal by the plaintiffs automatically failed. The plaintiffs filed a second appeal to the High Court and their appeal was accepted and directions were issued to the first appellate Court to rehear the appeals and to make certain inquiries. The appeal by the plaintiffs and the defendants were registered again for hearing and the first appellate Court directed issue of notice to the parties. The plaintiffs appeal is still pending. In regard to the appeal by the defendants, it was dismissed for default on 20-11-1947.

( 2 ) HARNARAYAN filed a petition for restoration of the appeal on 3-12-1947 but it was dismissed for default. He filed another application for restoration of his earlier application for restoration of the appeal on 4-8-1948.

( 3 ) JAINARAYAN filed a petition for restoration of appeal on 8-3-1949. Both these petitions were opposed by the plaintiffs but the learned Civil Judge at Jodhpur restored the appeal having accepted the petitions filed by Harnarayan and jainarayan. The plaintiffs have filed this revision against the aforesaid order of the Civil Judge dated 23. 8. 1949. During the course of arguments it appeared that it would be proper to hear arguments in respect of the petition for jainarayan first.

( 4 ) IT was contended by the counsel for the petitioner that under Article 168, limitation Act, the period prescribed for filing a petition for restoration of an appeal dismissed for default was thirty days from the date of the order of dismissal and the petition filed by Jainarayan being much later than the above period was not entertainable. On behalf of the opposite party, it was contended that the notice of hearing of appeal issued by the first appellate Court after remand was not served on Jainarayan and, therefore, the dismissal without intimating the appellants of the date of hearing was contrary to law and that in such a case the provisions of Article 168 were not applicable. Reliance was placed on Md. Ali v. G. G. in Council, A.. R. (36) 1949 ALL. 36: (1948 A. W. R. H. C. 310), Anandi Prasad v. Jhamman Lal, A.. R. (37) 1950 Ajmer 6 and atamahomed v. Shankar Das, A.. R. (11) 1924 Lah. 279: (68. C. 618 ). It was urged for the petitioners that according to a passage in the commentary on order 41, Rule 17, Civil P. C. , by Chitaley, it is the duty of the parties to ascertain the date of hearing of the appeal on remand by a superior Court. It, however, appears from the observations in Sheikh Baldar v. Sheik Imam, A.. R. (12) 1925 Nag. 31; (76. C. 46) that these observations are with reference to the practice prevailing in the Nagpur Courts. In the present case, notices were directed to be issued to the parties on receipt of files from the High Court and on the date of hearing prior to 20-11-1947, notices were as a matter of fact, issued for the information of Jainarayan to appear on 20-11-1947 which was the date fixed for hearing. One copy of notices were directed to be issued through the Head of Department where Jamarayan was serving and the othe