V. R. NEWASKAR, J.

( 1 ) THIS is a petition under Section 151, C. P. Code for restoration of the revision petition dismissed lor default by an order dated 7-7-1961.

( 2 ) THE revision petition was fixed for hearing on 6-7-1961 after reopening of the court after the summer vacation on 26th June 1961. The case had been listed according to Rules for that day. As nobody appeared on behalf of the petitioner it was adjourned to 7th and listed accordingly. On that day too neither the petitioner nor his counsel took any notice of the adjourned date. When, therefore the case came up on for hearing on 7-7-1961 it was dismissed for default. The present petition for restoration was submitted by shri E. Y. Paul the counsel for the petitioner. An affidavit was filed by the learned counsel in support of this petition. In the affidavit it was stated that the counsel had gone to madras for the summer vacation and consequently he failed to inquire about the probability of the case-coming up for hearing in the first week of July in the month of June. He therefore failed to come from Ratlam to Indore for the case; that for that reason he failed to secure information about the date of hearing as being 6-7-1961 or the adjourned date 7-7-1961.

( 3 ) THE facts disclosed in the affidavit to my mind disclosed sufficient cause for the absence of the party or his counsel. The party was not at fault as he had entrusted the case to his counsel who lived at Ratlam. The counsel had been to Madras during vacation which ended at the end of June. It is likely that the counsel failed to secure information about the date of hearing being 6-7-1961. Under these circumstances it is not legitimate that the party should be penalised for the error which may be due to an accidental circumstance particularly when the counsel lived at an out-station like Ratlam, But it is contended by Mr. Warune for the opponent that a revision petition dismissed for default cannot be restored. The provisions regarding appeal under Order 41, Rule 19, C. P. Code do not apply to revision petition. Nor can the inherent powers be resorted to for the purpose. The learned counsel relied upon the decisions of the Madras High Court reported in AIR 1943 Mad 260 (1), Subbamma v. Venkata Reddy, AIR 1945 Mad 103, Ramamurthi iyer v. Meenakishisundarammal and AIR 1951 Mad 672, Fire Stone Tyre and rubber Co. V. Ramanuja, in support of this contention.

( 4 ) IN AIR 1943 Mad 260 (I), Byers, J. relying upon an earlier decision of Burn, J. in c. M. P. No. 6550 of 1941, Khizar Muhammad v. Abdul Razack Sahib, held that a petition for restoration of a small cause revision dismissed for default is incompetent. In the decision of Burn, J. it was held that a revision petition under section 115, C. P. Code dismissed for default cannot be restored by resort to section 107 read with Order 9, Rule 9, C. P. Code. The above referred decision of burn, J. was followed by Byers, J. in AIR 1945 Mad 103 when the question regarding restoration of a revision petition under Section 115, C. P. Code arose. The learned Judge repelled the argument advanced on behalf of the petitioner that if the Court had no power to restore it had no power to dismiss for default by relying upon the words in Section 115 to the effect "the High Court may make such order in the case as it thinks lit. " According to the learned Judge neither the powers under Order 9, Rule 9 read with Section 141 nor those under 0. 41, R. 19, c. P. Code can be invoked for the purpose. He also rejected the contention that power under Section 151, C. P. Code at any rate could be resorted to for the purpose. His reasoning was that Section 151 cannot be taken to confer jurisdiction upon a Court which it does not otherwise possess. The decision of Byers, J. in the earlier case reported in AIR 1943 Mad 260 (1) is followed by Balakrishna Ayyar, J. in his decision reported in AIR 1951 Mad 672, wherein the question regarding restoration of a small cause revision arose. He noti

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