Order 41, Rule 19, CPC is applicable to dismissal of an appeal for default in service of notice, even if the dismissal is only against some of the respondents.

P. K. MISRA, J.

( 1 ) THE present appeal has been filed under Order 43, Rule l (t) of the code of Civil Procedure (in short, the "c. P. C. ")challenging the order of the District Judge, balasore, refusing to re-admit the appeal which had been dismissed for default.

( 2 ) THE present appellant had filed S. J. Appeal No. 40 of 1992 in the Court of the district Judge, Balasore, against the judgment and decree passed by the Additional Subordinate Judge, balasore, in O. S, No. 78 of 1986 (174/79), which is a suit for partition. In the said appeal, notices issued against respondents 10, 11, 20, 52, 62 and 67 therein (the present respondents) were returned unserved and the appeal was posted to 20. 1. 1998 for taking fresh steps against those respondents. Though an application praying for time to take steps had been filed, the said petition was rejected and ultimately the appeal was dismissed as against those respondents. An application under Order 41, Rule 19, CPC was filed by the present appellant. The said application was rejected on 6. 4. 1998 by observing thus :". . . . IT appears that the appeal was dismissed against the aforesaid respondents on 20. 1. 1998 in application of analogous provisions of Order 9, Rule 5, CPC read with under Order 41, Rule 8 CPC, Order 41, Rule 19 is applicable when the appeal is dismissed in toto. The appeal having not been dismissed in toto, the provision under Order 41, rule 19, CPC has no application. Thus, the petition is rejected. . . . "

( 3 ) THE appellate Court has relied upon the provisions contained in Order 9, Rule 5 and has observed that the said provision is applicable read with provision under Order 41, rule 8, CPC Order 9, Rule 5 relates to dismissal of suit where plaintiff fails to file necessary requisites for fresh summons. However, order 9, Rule 5 (3), specifically envisages that in case of such a dismissal, the plaintiff may bring a fresh suit subject to the law of limitation. Order 41, Rule 8 CPC lays down as follows:"8. Exercise of powers in appeal from order made in execution of decree-the powers conferred by Rules 5 and 6 shall be exerciseable where an appeal may be or has been preferred not from the decree but from an order made in execution of such decree. "it is not understood as to how the provisions contained in Order 41, Rule 8, CPC makes the provision contained in Order 9, Rule 5 applicable to an appeal. The provisions contained in Order 41, provide the procedure relating to filing of appeals. A perusal of the provisions contained in Order 41, particularly the provisions contained in Order 41, Rule 11{2)order 41, Rule 17 and Order 41, Rule 18, indicates that an appeal can be dismissed for default in the circumstances envisaged in those rules. Admittedly, in the present case, the appeal had not been dismissed by invoking jurisdiction under Order 41, Rule 11 (2) Order 41, Rule 17. However, in the present case the appeal had been dismissed due to non-taking of steps by the appellant in respect of some of the respondents. Order 41, Rule 18 provides as hereunder:"18. Dismissal of appeal where notice not served in consequence of appellant's failure to deposit costs. "where on the day fixed, or on any other day to which the hearing may be adjourned, it is found that the notice to the respondent has not been served in consequence of the failure of the appellant to deposit, within the period fixed, the sum required to defray the cost of serving the notice or if the notice is returned unserved, and it is found that the notice to the respondent has. been issued in consequence of the failure of the appellant to deposit, within any subsequent period fixed, the sum required to defray the cost on any further attempt to serve the notice, the Court may make an order that the appeal be dismissed ; provided that no such order shall be made although the notice has not been served upon the respondent, if on any such day the respondent appears when the appeal is called on for hearing. " a p