G.N.Ray, J. - (1.) This Revisional Application has been referred to a Larger Bench by a Division Bench presided over by Mr. Justice Anil Kumar Sen (as his Lordship then Was) for consideration by the Larger Bench the two points raised by their Lordships in the Division Bench: (1) Whether by invoking the provision of Section 141 of the Code, an application under Order 9 Rule 4 or Order 9 Rule 9 of the Code can be made for setting aside an order of dismissal for default of an application under Rules 4, 9 or 13 or Order 9 of the code? (2) When such an application is maintainable, what would he the limitation for such an application
(2.) The revisional application was made under Section 115 of the Code of Civil Procedure by the petitioner Mst. Nurnahar Bewa and another against Rabindra Nath Deb and others, inter alia, challenging Order No. 40, dated 9th July, 1982 passed by learned Subordinate Judge, 2nd Court, Alipore in Miscellaneous Case No 55 of 1982.
(3.) The short fact relevant for appreciating the points involved in this Special Bench Reference case may be stated as follows : - Title Suit No 22 of 1980 was instituted by the opposite party No. l against the petitioners being the defendants in the said suit for specific performance of a contract. The said suit was decreed ex parte and the balance of the consideration money was deposited by the plaintiffs in the said suit in Court within two months from the date of the decree and the said decree was put in execution in Title Execution Case No. 23 of 1980 for obtaining possession of the premises in question. The deed of conveyance was made, executed and. registered in January, 1981. The defendants, via., the petitioners in this revisional application made an application under Order 9, Rule 13, read with Section 151 of the Code of Civil Procedure for recalling the said ex parte degree. On such application, Misc. Case No 4 of 1981 was started. The said Miscellaneous Case was also dismissed for default on 24th September, 1981 and on November 21, 1981, an application under Order 9 Rule 4, read with Section 141 of the Code of Civil Procedure and also under Section 5 of the Limitation Act was made by the defendant petitioners for recalling the said order of dismissal dated 24th September, 1981 passed in Misc. Case No 4 of 1981. On such application Misc. Case No. 55 of 1981 was started. The learned Munsif dismissed the said application for recalling the order of dismissal of Misc. Case No. 4 of 1981 for default on the finding that the said application for restoration under Order 9, Rule 4 read with Sanction 141 of the Code of Civil Procedure was barred by limitation and the petitioners failed to prove any sufficient cause for which the delay should be condoned in presenting the application beyond the period of limitation.;