1. This is an application in revision against an order restoring an. application for restoration dismissed for default. I need express no opinion as to whether a revision lies, because we consider that in any case the application fails on the merits, but I may note that in Kallu v. Nadir Baksh 64 Ind. Cas. 527 : 19 A.L.J. 907 : (1922) A.I.R. (A.) 441, a Bench of this Court held that no revision lay against an order restoring the case, because the order was not a final order.
2. The suit had been dismissed for default, The plaintiffs applied to have it restored. That application was also dismissed -for default. They then presented an application to the effect that they had been prevented from attending on the date fixed, and asked for their restoration application to be restored. It was restored on payment of Rs. 5 costs to the opposite party. The defendant in revision contends that if such an application has been dismissed ex part more than thirty days after the date of the decree, the plaintiffs are left without a remedy. He relies on the decision in Pitambar Lal v. Dodee Singh 78 Ind. Cas. 358 : 22 A.L.J. 191 : 46 A. 319 : (1924) A.I.R. (A.) 503 : L.R. 5 A. 226 Civ. I notice that in the case relied on though the, learned Judges held that Order IX, Rule 9, not apply they nevertheless refused to interfere. In Cudh I have followed the view, which is also taken by the Calcutta and Punjab High Courts, that Order IX read with Section 141, C.P.C. can be applied, to these proceedings. I may refer to the following authorities:
Jamna v. Ramraji 71 Ind. Cas. 380 : 9 O.L.J. 627 : 9 0. & A.L.R. (O.) 32 : (1923) A.I.R. (0.) 146, Bepin BehaH Saha v. Abdul Barik 35 Ind. Cas. 613 : 44 C. 950 : 24 C.L.J. 446 : 21 C.W.N. 30. and Abdul Rahman Shah v. Shahana 58 Ind. Cas. 748 : 1 L. 339 : 82 P.W.R. 1920 : 1 I.L.J. 188.
3. There may be special reasons why Order IX should be held inapplicable to execution proceedings, but I can see none for not applying to a proceeding of this kind. The question of appeal is not to my mind fin objection. If Order IX does not apply, then, as Pitambar Lal v. Dodee Singh 78 Ind. Cas. 358 : 22 A.L.J. 191 : 46 A. 319 : (1924) A.I.R. (A.) 503 : L.R. 5 A. 226 Civ. and the judgment which it follows show, the Courts have great difficulty in devising a suitable remedy. Section 151 provides an emergency power which it ought not to be necessary to resort to in a class of cases which are of every day occurrence as these are. But even if Order IX. Ruler 9 does not apply. I am not prepared to hold that, if a party prosecuting a restoration application is genuinely prevented from appearing, he is left without resource. To hold this might $ be to work great injustice. A man might, for instance, accidentally break his leg on the way to Court. If the view contended for by the applicant is correct, this accident would lead to his suit remaining irrevocably dismissed. The attention of the learned Judges who decided Pitambar Lal v. Dodee Singh. 78 Ind. Cas. 358 : 22 A.L.J. 191 : 46 A. 319 : (1924) A.I.R. (A.) 503 : L.R. 5 A. 226 Civ. was not directed to Section 151, C.P.C. If there is no other remedy we think that, that section will apply in a case such as this.
4. We accordingly refuse to interfere and reject this application with costs including fees on the higher scale.
5. I concur in the proposed order. I would only like to add a few words with regard to the cases which have, been cited before us. In the case of Bipin Behari Saka v. Abdul Barik 35 Ind. Cas. 613 : 44 C. 950 : 24 C.L.J. 446 : 21 C.W.N. 30, the learned Judges of the Calcutta High Court considered that a second application for restoration of a case dismissed for default could be treated as an original application for setting aside the dismissal. If the decision merely meant that such an application for setting aside a dismissal can be filed regardless of the fact that a previous application has been dismissed, then all that 1 would say is that that point does not arise before us. If, however, it, was intended to be laid down that an application for the restoration of an application for setting aside the dismissal does for all purposes come under Order IX, then it would be difficult to accept that view, for that may give the person whose application is dismissed a right of appeal under Order XLIII, which is not expressly provided. In the case of Chandra Sahai v. Durga Prasad 79 Ind. Cas. 323 : 22 A.L.J. 427 : 46 A. 538 : (1924) A.I.R. (A.) 682 : L.R. 5 A. 331 Civ. I have held that no such appeal lies. The Patna High Court in the case of Ramgulam Singh v. Sheo Deonarain Singh 51 Ind. Cas. 152 : 4 P.L.J. 287. held that an application for restoration of an application under Order IX for setting aside an ex part decree, which had been dismissed, for default, did not lie under that Order. That view is correct. But when the learned Judges go on to say that the only remedy open to the aggrieved party was to appeal against the original order made under 0. IX, it is difficult to accept that view, for it seems to me that there would be a remedy by applying to the Court to invoke its inherent jurisdiction to set aside the dismissal of that application. Section 151 C.P.C. was not considered by those learned Judges. I fail to see why a Court cannot on good cause shown restore an application for setting aside if dismissal for default or an ex part decree, which application itself has been dismissed for default. In the case of Pitambar Lal v. Dodee Singh 78 Ind. Cas. 358 : 22 A.L.J. 191 : 46 A. 319 : (1924) A.I.R. (A.) 503 : L.R. 5 A. 226 Civ, it was conceded that Order IX, Ruler 9 was not applicable to such an application but that application was treated as being itself an original application for setting aside the ex parte decree. This last point does not arise in this case. I would not say that an application for restoration of a previous application dismissed for default falls directly, under Order IX, because of the provisions of Section 141 but I would say that such an application is entertain able under the inherent jurisdiction which the. Court possesses under Section 151, C.P.C. It is easy to conceive of great hardship if this view is not to be accepted, for the dismissal of the application may take place long after' the period fixed for getting the dismissal of the suit set aside has expired. In which case no useful purpose would be served by treating a fresh application as being itself an original application under Order IX. I apt accordingly unable to hold that the Court below had no jurisdiction in restoring the application or that there has been any material irregularity in the exercise of its jurisdiction.