The power of restoration of an appeal dismissed for default is to be exercised under Section 151, C. P. C., for which no period of limitation is prescribed by the Indian Limitation Act.

P. K. MOHANTI, J.

( 1 ) THIS is an application under Section 151. C. P. C. for restoration of First Appeal No. 47 of 1974 which was dismissed for default on 29-1-1979.

( 2 ) THE First Appeal was dismissed because the appellant failed to comply with a peremptory order to file the paperbooks on compulsory documents within the time fixed by the Court. The petitioner's contention is that he did not know that a peremptory Order had been passed and that when the connected appeal (F. A. No. 310 of 1978) was listed in the Cause List on 7-5-80 he came to know about the dismissal of the appeal.

( 3 ) THE application for restoration was filed on 12-5-80. that is, after a delay of about 523 days. The petitioner has filed another application for condonation of delay on the ground that he was not aware of the peremptory order and he came to know about dismissal of the appeal for the first time when the matter was listed in the Cause List on 7-5-80.

( 4 ) THE Opposite Party No. 1 Jairam Jena has opposed the prayer for condonation of delay. His contention is that there was wilful laches on the part of the petitioner in not filing an application for restoration in time.

( 5 ) THE appeal was not dismissed for non-compliance with the provisions of Order 41, Rules 11, 17 and 18. Consequently the application for restoration cannot be treated as one under Order 41, Rule 19, C. P. C. The appeal purports to have been dismissed under the second proviso to Rule 13 of Chapt. HI, Part I of the Rules of the High Court of Orissa, Volume I. The Rules of the High Court do not prescribe any period of limitation for restoration of an appeal dismissed for default. The power of restoration is to be exercised under Section 151, C. P. C. for which no period of limitation is prescribed by the Indian Limitation Act. No doubt, in the case of Bimala Devi v. Patitapaban Dev, ILR (1973) Cut 267 : (AIR 1973 Orissa 169) a Full Bench of this Court held that an appeal dismissed for non-compliance with the High Court Rules is none-the-less an appeal dismissed for want of prosecution and as such an application under Section 151, C. P. C. for restoration of such an appeal falls within the ambit of Article 122 of the Indian Limitation Act. But in the present case, the petitioner's contention is that the order of dismissal was not passed by the Court but by the Deputy Registrar under a mistaken impression that the appeal came to an end on the expiry of the time granted by the Court to file the paperbooks on compulsory documents. The argument is that the appeal is deemed to be pending and the order of dismissal recorded by the Deputy Registrar is a nullity. There is considerable force in this argument. We accordingly hold that the question of limitation does not arise in this case.

( 6 ) MR. S. K. Mohanty, learned counsel appearing for the petitioner submitted that in the absence of any direction by the Court that on failure to comply with the peremptory order the appeal shall stand dismissed without further reference to the Bench, it was necessary to place the matter before the Bench for final orders.

( 7 ) UNDER Rule 8 of Chapt. XI of the Rules of this Court the appellant was required to supply along with the appellant's list the requisite number of typed cyclostyled paperbooks containing the compulsory documents. The appellant's list was filed on 4-5-76, It was not accompanied by the paperbooks on compulsory documents- The appeal was listed on 6-10-78 with the office note that the paperbooks on compulsory documents had not been filed and the Court passed the following order:

XXX XXX XXX XXX Two weeks' time after the ensuing Puja holidays of the Court is granted peremptorily to file requisite number of copies of paperbook on compulsory papers. " The above order having not been complied with the appeal was dismissed for default on 29-1-1979 as per the order of the Deputy Registrar which runs as follows : "25. 29-1-79. The required number of paperbooks on compulsory docume