J.V. Gupta, J. - (1.) THIS revision petition is directed against the order of the trial Court dated March 24, 1987, whereby the application for the restoration of the application for setting aside the ex parte, decree was dismissed.
(2.) THE Plaintiff obtained an ex parte decree against the Defendant -Petitioner Darbara Singh, on May 22, 1955. The application for setting aside the said ex parte decree filed by the Defendant which was dismissed for default of appearance on January 16, 1987. On the next day, i.e., on January 17, 1987, an application was filed for its restoration on the allegations that the Defendant was sitting outside the Court through out the day on January 16, 1957, but he could not listen to the call of the Court when the case was called for hearing According to him at about 4 P.M. on January 16, 1987, he told his counsel about his case having not been called and when the counsel sent his clerk to find out the fate of the case, the counsel for the Plaintiff told him that the case was fixed for the next day, i.e., January 17, 1987. Thus, the Defendant went away and it was on the next day i.e., January 17, 1987, that he came to know that the application for setting aside the ex parte decree had been dismissed for default of appearance on January 16, 1987. The said application was contested by the Plaintiff. The trial Court dismissed the said application primarily on the ground that no application for restoration of the petition under Order IX Rule 13, Code of Civil Procedure, (hereafter called the Code), was competent. The learned Counsel for the Petitioner submitted that the view taken by the trial Court in this behalf was wholly illegal and wrong. There was no bar to maintain the application for restoration of the petition under Order IX Rule 13 of the Code. In support of the contention, the learned Counsel relied upon the Full Bench judgment of the Patna High Court in Bajrang Rai v. Ismail Mian : A.I.R. 1978 Pat. 339.
(3.) AFTER hearing the learned Counsel, I find merit in the contention.;