An application to restore an application under O. 9, R. 9 (which had been dismissed in default) would not be governed by Art. 181, Limitation Act, which provides for three years limitation. Such an application would be governed by Art. 163, Limitation Act, which prescribes 30 days limitation.

JUDGMENT:- This revision petition, by a defendant, arises out of an order passed by the Subordinate Judge of Theog on 7-5-1956, purporting to restore an application under O. 9, R. 9 (which had been dismissed in default on 14-1-1955) in the exercise of his inherent powers under S. 151, Civil P. C.

2. The following dates are material in this case. The suit, giving rise to the present revision petition, was instituted on 1-10-1954. It was dismissed in default of the plaintiff on 3-11-1954.

An application under O. 9, R. 9, was filed by the plaintiff on 13-11-1954, seeking the restoration of the suit. This application was also dismissed in default of the plaintiff on 14-1-1955. On 26-3-1955, an application, purporting to be under S. 151, Civil P. C., was put in by the plaintiff, wherein the inherent powers of the Court were invoked to restore the application under O. 9, R. 9.

3. On notice of the application under S. 151, Civil P. C., being given to the defendant, the latter contended that the application was not only incompetent, but was also time-barred. In the alternative, he pleaded that there was no sufficient cause for restoring the application under O. 9, R. 9.

4. The learned Subordinate Judge, Theog, held that the application under S. 151 was competent and the period of limitation for such an application would be governed by Art. 181, Limitation Act, which provides for three years limitation. On merits, he found in favour of the plaintiff and, accordingly, he restored the application under O. 9, R. 9.

5. This revision petition was admitted on 21-7-1956, inter alia, on the question whether an application to restore an application under O. 9, R. 9 (which had been dismissed in default) would be governed by Art. 181.

6. Arguments of the learned counsel for the parties were heard on the 23rd instant.

7. In coming to the conclusion that an application under S. 151 to restore an application under O. 9, R. 9 (which had been dismissed in default), would be competent, the Court below has expressed its view that no appeal lay against the order, dismissing the application under O. 9, R. 9, in default on 14-1-1955.

In my opinion, however, for reasons to be stated shortly, such a view is not correct. Madanlall Agarwalla v. Tripura Modern Bank Ltd., AIR 1954 Assam 1 (FB) (A), cited by learned counsel for the respondent and which has been referred to by the trial Court, is a decision which goes against the respondent. In the above case, the majority view of Sarjoo Pro-sad, C. J. and Deka, J., was:

"No matter whether an application under O. 9, R. 13, is dismissed for default or on the merits, an appeal will be competent under O. 43, R. 1 (d)."

On the same analogy, it can be said that, irrespective of whether an application under O. 9, R. 9, is dismissed in default or on merits, an appeal would lie under O. 43, R. 1 (c). A similar view was taken by the Allahabad High Court in Uma Dutt v. Mt. Zakia Bibi, AIR 1936 All 737 (B). There, a Division Bench of that High Court held that where an application under O. 9, R. 9, was dismissed because the plaintiff deposited the process-fee too late, an appeal would lie under O. 43, R. 1 (c), although there had been no adjudication on the merits of the application. A similar view was taken also in Kamma Narasayya v. D. Thimmappa, AIR 1943 Mad 584 (C), where a learned Judge of that High Court held that:

"An order dismissing for default an application under O. 9, R. 9, is appealable under O. 43, R. 1 (c)."

I am, therefore, of the opinion that it was open to the plaintiff, in this case, to go up in appeal against the order dated 14-1-1955, dismissing his application under O. 9, R. 9, though in default.

8. The question then arises as to what other remedy was open to the plaintiff, he not having availed himself of the right of appeal. In AIR 1954 Assam 1 (FB) (A), referred to earlier, it was held that in appropriate cases, a remedy may be available to the party aggrieved by means of an application under S. 151.

In my opinion,

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