( 1 ) THIS revision under Section 115 of the Civil Procedure Code is by the plaintiff against the order, dated 27-4-1962, passed by Shri Devendrasingh, Additional district Judge, Alirajpur in Civil Misc. Case No. 9 of 1961 refusing to restore to file civil Appeal No. 4 of 1961 which had been dismissed at his instance.

( 2 ) THE petitioner had filed a suit for specific performance of contract of sale of a motor car and damages on 18-2-1955. That suit was dismissed on 9-12-1959. The trial Judge mentioned that the dismissal was under Order 17 Rule 3, Civil procedure Code.

( 3 ) THE petitioner on 23-12-1959 filed an application under Order 9 Rule 9, Civil procedure Code for restoration of the suit to file. The application was dismissed by the trial Court on 24-2-1960 on the assumption that the dismissal of the suit being under Order 17 Rule 3, Civil Procedure Code Order 9, Rule 9, was not attracted and the remedy of the plaintiff was to file an appeal against the order dismissing the suit tinder Order 17 Rule 3, Civil Procedure Code.

( 4 ) THE petitioner filed Civil Appeal No. 3 of 1960 against the order of the trial judge, dated 24-2-1960 refusing to restore the suit to file. The appellate Judge by order, dated 30-12-1960 allowed the appeal and restored the suit on certain condition holding that the dismissal was under Order 17, Rule 2, Civil Procedure code, and not under Order 17, Rule 3, Civil Procedure Code- Against that order, the present respondents filed civil Revision No. 112 of 1961. The Single Bench of this Court presided over by Naik J, by order, dated,. 29-9-1961 allowed the revision on the ground that the order of dismissal was under Order 17 Rule 3, Civil procedure Code and, therefore, Order 9, Rule 9 Civil Procedure Code was not attracted.

( 5 ) IN the meantime, the petitioner had also filed Civil Appeal No. 4 of 1961 against the order, dated, 9-12-1959 dismissing the suit under Order 17 Rule 3, Civil procedure Code, That appeal was filed by him on 1-2-1960, although it was probably registered later. The petitioner had not paid any court-fees on the memorandum of appeal. But, he paid the same on 5-3-1960. He also filed an application for extension of time under Section 5 of the Limitation Act. On 7-41961 he filed an application stating that as his suit had been restored to file by the appellate Order, dated 30-12-1960, he did not wish to continue the present appeal. Therefore, the appellate Judge dismissed the appeal by order, dated, 7-41961, and allowed refund of Court-fees. The said order is recorded on the application itself and there is no mention in the order sheets. It is to be found in the record of Misc. Civil Case No. 9 of 1961 at page 38. ( 6 ) AFTER Civil Revision No. 112 of 1961 was allowed by this Court on 29-9-1961, the petitioner on 19-12-1961 filed an application for revival of Civil Appeal No. 4 of 1961. The learned appellate Judge by order, dated 27-4-1962 dismissed that application. Hence the present revision by the plaintiff.

( 7 ) THE question involved in the present revision is whether the petitioner's appeal (Civil Appeal No. 4 of 1961) should be revived under the inherent powers of the court in view of the circumstances stated above under which it came to be dismissed on 7-4-1961. In this connection, the learned appellate Judge relied on the case of Ram Lal Sahu v. Dina Nath AIR 1942 All 253 (1) and distinguished: the case of Mohammed Shafi v. Chedu, AIR 1930 All 100. It is, therefore, necessary to see as to what principle exactly would be applicable to such a situation.

( 8 ) IN AIR 1930 All 100 (Supra) the facts were that a suit in which there were several plaintiffs was dismissed on 14-7-1927. One of the plaintiffs applied for restoration of the suit. The question was whether the dismissal of the suit was under Order 17 Rule 3, Civil Procedure Code, Two other plaintiffs filed an appeal against the decree on merits treating the dismissal to be under Order 17 Rule 3, civil Pro