SIDDHARTHA VARMA,J. - (1.) The instant writ petition was filed by the petitioner against the orders dated 28.5.1999, 10.7.2000 and 8.1.2001 passed by the respondent no. 1 and the judgement and decree dated 27.1.1998 passed by the respondent no. 2.
(2.) The facts of the case are that when a suit being Suit No. 14 of 1996 was decreed by the respondent no. 2, the petitioners filed a first appeal being First Appeal No. 386 of 1998 along with an application under Section 5 of the Indian Limitation Act. The application under Section 5 of the Indian Limitation Act, however, was dismissed for want of prosecution on 28.5.1999 and consequently, the memo of appeal was rejected as being barred by time. There is no averment in the writ petition that a decree was prepared thereafter. However, against the order dated 28.5.1999, the petitioners filed an application under Order 41, Rule 19 and under section 151 of the C.P.C. for recalling of the order. This application was accompanied by an affidavit but it was again on 10.7.2000 dismissed in default. The petitioners on 23.7.2000 filed an application under Order 9, Rule 4 for the recall of the order dated 10.7.2000. The District Judge, Varanasi, on 8.1.2001 dismissed the application filed by the petitioners on 23.7.2000. The District Judge, upon going through the record, found that there was no ground to set aside the order dated 10.7.2000.
(3.) Learned Counsel for the petitioners has submitted that the restoration application should have been allowed and the First Appeal should have been heard on merit.;