Debi Prasad Sarkar (II), J. - (1.) This is an application under Section 115 of the Code Of Civil Procedure directed against the order dated 9.8.96 passed by the learned Assistant District Judge, Durgapur in Misc. Appeal No. 19/1995 arising out of the Misc. Case No. 194/1993 connected with the Title Suit No. 136/1974.
(2.) The plaintiff-opposite party filed a suit under Section 36(1) of the Bengal Money Lenders' Act. Regarding substitution and some other ancillary matter the parties approached the Hon'ble Court and Hon'ble Justice Mr. Raj Khawa, since retired, disposed of the matter with a direction to send the record to the learned Trial Court for proceeding with the suit. The learned Trial Court on receipt of the record from the Hon'ble Court directed the office to notify the parties. But there is nothing on record to show that actually the parties were notified. The record was received by the lower Court from the Hon'ble Court on 20.3.92 and 27.4.92 was fixed for taking steps with direction to inform the parties but the parties were not informed. As a result, the learned Trial Court dismissed the suit for default on 27.4.92. On 13.9.93 the plaintiff-opposite party could know about the fact of dismissal for default and obtained a Information Slip. On 5.10.93 be filed the Misc. Case for restoration of the suit under Order 9 Rule 9 of the C.P.C. read with Section 151 of the C.P.C. along with an application under Section 5 of the Limitation Act. On 20.9.95 the learned Munsif dismissed the Misc. Case and also rejected the application under Section 5 of the Limitation Act. Against that order a Misc. Appeal being No. 19/1995 was filed by the plaintiff opposite pens and the learned Assistant District Judge disposed of that matter by setting aside the finding and decision of the learned Munsif and allowing the Appeal as well as the prayer for restoration of the suit.
(3.) On being aggrieved by this order the present revisional application has been filed by the defendant-petitioner, inter alia, on the ground that the learned lower Appellate Court passed the order without obtaining sufficient explanation for the cause of delay and also on the ground that the rejection of the application under Section 5 of the Limitation Act is not appellable, but revision lies. It is further submitted by the learned Advocate for the petitioner that the order dismissing the Misc. Case under Order 9 Rule 9 of the C.P.C. is appeallable no doubt but unless the application under Section 5 of the Limitation Act is allowed, in effect there was no Misc. Case under Order 9 Rule 9 of the C.P.C. and accordingly, there was no scope for filing any Appeal against the order of dismissal of that Misc. Case under Order 9 Rule 9 of the C.P.C. The learned Advocate, on the other side, has placed his argument in support of the order passed by the learsed Appellate Court in his favour.;