Krishnaswami Nayudu, J.-

In O.S.No. 20 of 1937 on the file of the District Court of South Arcot a mortgage decree was passed on 6th January, 1939, for a sum of Rs. 3,540-15-4, the mortgagors being the 1st defendant and the 2nd defendant being his minor son represented by the father 1st defendant as guardian-ad-litem. One Muthu Venkatapathi Reddiar as the assignee-decree-holder brought the mortgaged property to sale, the sales having been held on the 11th and 12th September, 1944, and three persons Mahadeva Goundan, Natesa Goundan and Swami Kannu Goundan and the decree-holder purchased the property at the auction. M. P. No. 302 of 1944 was filed on behalf of the minor second defendant for setting aside the sale under Order 21, rule 90 and section 47, Civil Procedure Code, mainly on the ground that there was no proper advertisement and publication of the sale and that the property which was of the value of about Rs. 16,000 fetched a low price of about Rs. 6,442. Sufficient security in immovable properties was furnished on behalf of the 2nd defendant-petitioner and during the pendency of the petition the 2nd defendant having become a major he was declared a major and he elected to proceed with the petition executed a fresh security bond and registered it and the petition was posted for enquiry to the 10th April, 1945. The Court having been engaged in sessions work on that day the petition was adjourned to 10th July, 1945. The petitioner was called on 10th July, 1945, and found absent and his vakil reported no instruction with the result the petition was dismissed. From the endorsement on the petition it is seen that the Advocate asked for adjournment, the adjournment was refused and the petition was dismissed. On 12th July, 1945, the Court passed an order confirming the sale. The petitioner filed a petition under Order 9, and section 151, Civil Procedure Code, for setting aside the order of dismissal but the same was dismissed on the ground, that such an application does not lie. Then he appealed to the High Court against the order of dismissal of M.P.No. 302 of 1944 in C.M.A.No. 447 of 1945 and by order of the High Court dated 28th March, 1946, the District Judge of South Arcot was directed to restore the petition (M.P. No. 302 of 1944) on the petitioner paying to the respondents a sum of Rs. 500 as and towards their costs up to that date within one week of the re-opening of the District Court. There is a further direction that the District Judge shall dispose of the petition on the merits in the light of the observations contained in the judgment. In the judgment, the learned Judge observed that the petitioner was a college student and his antecedent conduct with reference to the petition did not justify the view that he was really unmindful of the petition and did not care as to what happened to it and that he should be given an opportunity to satisfy the District Judge that he had good grounds for non-appearance on the date of the hearing and that his petition was not a frivolous or vexatious one. The learned Judge’s order proceeds as follows:-

“If the appellant pays within one week of the reopening of the District Court, Cudda’ore, to the respondents a sum of Rs. 500 as and towards their costs of the proceedings held so far, to be retained by them in any event and irrespective of the result of the petition, the order of the lower Court will stand set aside and the petition will be restored to file and disposed of according to law. The District Judge will first go into the question, whether the appellant had satisfactory grounds for being absent on the 10th July, which is the subject-matter of the miscellaneous petition filed by the appellant for the restoration of the petition under Order 21, rule 90, Civil Procedure Code which was dismissed for default. If he is satisfied that the appellant had good grounds for non-appearance, the petition will be dealt with on its merits.”

The petitioner complied with the order for costs and

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