The court emphasized the mandatory nature of Order 41, Rule 10(2) and the importance of adhering to the Limitation Act, 1908 in considering the restoration of appeals.

Curgenven, J.

1. This is an application by die appellant in O.S. Appeal No. 63 of 1930 to set aside the dismissal of that appeal as against the 1st respondent and to review or set aside certain interlocutory orders passed in the same appeal. The appeal was from a judgment of Waller, J., dated the 15th October, 1929, annulling the adjudication of the 2nd respondent and directing the appellant to pay the 1st respondents costs. It was admitted on the 1st September, 1930 and on the 8th November the 1st respondent applied for a direction that the appellant should furnish security for her costs in the appeal. The application was allowed ex parte on the 19th December, no one appearing on behalf of the appellant, who was directed to give the required security within one month from that date. On the last clay of that period, the 19th January, 1931, an application was filed on behalf of the appellant (C.M.P. No. 548 of 1931) to rescind this order. That also was dismissed for default on the 10th February, again, no appearance being put in for the appellant. On the 13th February the appeal itself was dismissed under the provisions of Sub-rule (2) of Rule 10 of Order 41, Civil Procedure Code. It is this last order which the appellant primarily attacks, and in order to do so he pleads that the order of the 10th February cannot be sustained because on the previous day, the 9th, he was adjudicated insolvent and, further, that he had sufficient cause for not appearing before the Court when the original order to give security was passed on the 19th December.

2. It is indisputable that before the Court can set aside the orders of the 10th February and 19th December, it must restore the appeal itself, as unless the appeal is pending there can be no revival of the interlocutory applications, which depend for their existence upon the pendency of the appeal. As regards the restoration of the appeal the appellant has been met by the defence of limitation. There has been some difference of judicial opinion as to whether an appeal dismissed under Rule 10 (2) of Order 41 can be restored. It was held in Srinivasam Pillai v. Rukmani Ammal (1927) 55 M.L.J. 330, to which one of us was a party, that this could be done and for the purpose of this case we propose to assume the power. It seems clear, however, and indeed has not been seriously disputed before us that such an application must be governed by Article 168 of the Limitation Act, which provides for the re-admission of an appeal dismissed for want of prosecution. This article for appeals corresponds, we think, to Article 163 for suits and the latter article expressly refers to dismissal for failure to furnish security for costs. It is reasonable to hold that such a failure comes under the general description of "want of prosecution". If this is correct the appellant had thirty days within which to apply and it is not disputed that his application was forty-one days out of time. It has been vaguely suggested that the adjudication of the appellant affected this question, but in what manner has not been explained. Insolvency is not a disability under the Limitation Act and there is no reason to hold that the Official Assignee would have had a longer time within which to apply than the insolvent himself. We think accordingly that this objection is fatal.

3. The insolvency of the appellant is also the ground upon which we are invited to set aside or review the order of the 10th February, which dismissed for default an application to set aside the ex parte order directing the appellant to furnish security for costs. The point taken is, in brief, that the appellant was disqualified by his adjudication from conducting the application and that the Court before dismissing it ought to have given the Official Assignee an opportunity to carry it on. The cases relied on by Mr. V. V. Srinivasa Aiyangar for this position, Lekhraj Chuni Lal v. Sham Lal Narrondas I.L.R. (1892) 16 B. 404, Kissen Gopal Karnani v. Suklal