Sarjoo Prosad C. J. - (1.) THIS is an application for restoration of Civil First Appeal No. 34 of 1956 which was dismissed for non-prosecution.
(2.) THE appeal was filed on 16th July. 1956; but it appears that the court fee paid on the memorandum of appeal was insufficient. THE appellant's counsel applied for condonation of delay to enable him to pay the deficit court fee. One Mr. J. D. Agarwal filed Vakalatnama on behalf of respondents Nos. 1 to 3 in the appeal on 18th December, 1956 and opposed the application for extension of time for payment of court fee. THEreafter Mr. R. K. Rastogi also appeared. It is stated before us that he actually appeared on behalf of the respondent No. 3. THE matter for condonation of delay in filing the court fee was put up for hearing in due course and the delay was condoned by an order of this Court dated 3rd October 1958. Mr. Rastogi wanted to contest this order and eventually on 23rd February, 1959 the order for condoning the delay for payment of court fee was affirmed by this Court in the presence of the learned counsel. It appears that in the earlier order dated 3rd October, 1958, the court had directed that after admitting the appeal the office should proceed according to law. Accordingly the office directed that notices of the appeal should be served upon the respondents. THE learned counsel for the appellant submitted to the order and deposited the requisite Talbana and processes for service on the respondents. On this occasion notice appears to have been served on the respondent No. 1 only, but no service could be effected on respondents Nos. 2 and 3 and therefore, the appellant was directed to supply fresh Talbana and processes for service on these respondents. As this Talbana was not deposited within time the matter was put up before the Court on 10th March, 1959 for dismissal of the appeal. THE Court then ordered that if the process fee and summonses were not filed within ten days from the date of the order, the appeal should Stand dismissed. Accordingly, the appeal stood dismissed on the terms of the order and a record to that effect was made by the Deputy Registrar on the 31st of March, 1959. It appears from the above statement of facts that when fresh Talbana and processes were demanded, the learned counsel for the appellant never raised any objection to the demand. On the contrary he submitted to the direction of the office that fresh Talbana for service of notice of appeal should be filed along with the processes; and even when the matter was put up before the Court, no objection was taken by the learned counsel for the appellant Shri B. P. Agarwal who was present when the order was passed. This application for restoration of the appeal was then presented on the 17th of September, 1959 some six months after the dismissal of the appeal. The petitioner submits that in view of the fact that the respondents had already appeared at an earlier stage and the court while accepting the deficit court fee and condoning the delay on payment of the same on 3rd October, 1958 had ordered that the office should proceed according to law, all that had to be done was to send for the record of the case and to take up proceedings for preparation of the paper book. It was not necessary to serve any further notice of the appeal on the respondents who had already appeared and had been represented in the earlier proceeding which was a proceeding in the appeal itself. Possibly if the attention of the office had been drawn to the matter in due time it may have considered the validity of the objection. Ordinarily under Order 41 rule 14 of the Code of Civil. Procedure, notice of the appeal has to be served on the respondent or on his pleader in the manner provided for service on a defendant of a summons to appear and answer; and similarly under Rule 171 of the High Court Rules, notice of the appeal has to be issued to the respondents or proposed respondents. Under Rule 172 of the High Court Rules service has to be affected according to the provisions of Order V of the. Code; but where a party is represented by an advocate, notice of any proceeding in the case should be served unless otherwise directed, on such advocate. In this case it appears that the Deputy Registrar thought that notice of appeal should be issued to the respondents afresh because the earlier matter related to the stage of hearing of the application for condonation of delay in payment of court fee. The Deputy Registrar therefore, purported to act under clause (c) of Rule 172. It was open to the learned counsel for the appellant to draw the attention of the office to the fact that notices could be served on the learned counsel for the respondents; but he never attempted to do so. On the contrary he submitted to the order passed by the office which could be validly passed and even when the matter came up before the Bench, the learned counsel for the appellant did not impugn the directions of the office, but submitted to the order which gave time to file Talbana and processes within a peremptory period, failing which the appeal would stand dismissed. Having submitted to the orders from time to time it is difficult to challenge the order now on the ground that it was without jurisdiction and that it was purely an error on the part of the office requiring further payment of process fee and filing of summonses for service of notice of the appeal on the respondents. There is however, a more serious objection to the application for restoration of the appeal on the ground of limitation. Mr. Rastogi contends that under Art. 168 of the Limitation Act which should apply to all cases of applications for restoration of appeals dismissed for non-prosecution, the application should be filed within 30 days from the date of the order of dismissal. In this case it was filed much beyond the period of limitation and no satisfactory explanation has been given as to why it was filed so late. Mr. Rastogi has relied upon a decision of this Court in Ram Niwas vs. Suleman (1), where an application for restoration of appeal which had been dismissed for default of the appellant to pay costs of the preparation of the paper book as required by the rules was held to be governed by Art. 168 of the Limitation Act. As pointed out by the learned Judges such a dismissal could be called dismissal for want of prosecution and Art. 168 would apply to such cases where there is an application for re-admission of the appeal. While discussing the matter the learned Judges observed that - "there was no difference in principle between dismissal for non-payment of Talbana or the process fee and dismissal for non-payment of printing costs, because both were dismissals for want of prosecution, and where an application for restoration may not lie under Order 41 rule 19 but under sec. 151 of the Code of Civil Procedure; the appropriate article equally applicable would be Art. 168 of the Limitation Act. " We respectfully agree with the observations made in this judgment and we see no reason to think that in the circumstances of this case Art. 168 would not be applicable. Learned counsel for the appellant has drawn our attention to a decision in Bhura vs. Nathulal (2) That case in our opinion has no application. Here what happened was that an application for amendment of the memorandum of appeal by substituting the name of one of the respondents was listed for orders of the Court. As the appellant did not appear the Court instead of rejecting the amendment application dismissed the appeal for default. An application for restoration was then filed after four months and it was contended that it was barred under Art. 168 of the Limitation Act. Their Lordships held that Art. 168 could not apply to such a case because the party should not suffer on account of the mistake of the court and the application for restoration should be considered as one for correction of the aforesaid mistake only. That of course is a well known principle that no party carl suffer for the wrongs of the court. Here it was an error on the part of the court in dismissing the appeal and the court could rectify that error at any stage irrespective of the provisions of the Limitation Act. The other case of Magraj vs. Harnarain (3) to which reference has been made by the learned counsel for the appellant is also a case of a similar nature. In that case there was no notice of the date of hearing given to the appellant, yet the appeal was dismissed for default. It was held in the circumstances that Art. 168 of the Limitation Act did not come into play and the appeal could be restored under the inherent powers of the court preserved under sec. 151 of the Code. The position here as stated earlier is quite different. It cannot be said here that there was any error on the part of the office in demanding Talbana and processes or that of the court in dismissing the appeal for default. The blame in this case lies entirely upon the appellant or on the learned counsel who never tried to take advantage of the rules or to claim exemption on the ground that under the rules any such exemption was permissible. The appellant has to thank himself for not doing so and in not presenting the application until after such a long delay. The application is accordingly dismissed. There will be no order as to costs. . ;