N. C. KOCHHAR, J. - (1.) THE facts giving rise to this review petition are as under :- THE applicants-appellants had filed an appeal under Section 96 of the Code of Civil Procedure (the Code) against the decree and judgment dated 4. 3. 77 passed in Civil Suit No. 72/73 (136/73) by the learned A. D. J. Jaipur City, Jaipur. THE appeal was admitted and notice of the appeal was issued to the respondent-plaintiff. After service of the notice of the appeal it was listed for hearing on 28. 2. 85 when it was dismissed in default for non- prosecution. THE appellants moved an application on 12. 11. 85 stating that the counsel for the appellants missed to note the case in the cause-list and, as such, no appearance could be made and this fact came to their knowledge later on and, as such, application for restoration was being made. An application under Section 5 of the Limitation Act was also moved with a prayer that the delay in filing the application for restoration be condoned. THE notice of the restoration application as also of the application under Section 5 of the Limitation Act was issued to the respondent. Despite service none appeared for the respondent and the matter came for hearing on 10. 7. 87. THE learned counsel for the appellants addressed arguments on the restoration application. THE Hon'ble Judge vide order dated 10. 7. 87 observed that the impugned decree for Rs. 13,685. 71 paisa with interest was passed in the suit which was filed in 1972 and that in these circumstances it would be in the interest of justice to direct the appellants-applicants to pay at least Rs. 10,000/- in the Executing Court before the restoration application was decided. THE applicants were granted two months time for making such payments. This application was filed by the appellants-applicants in this Court for reviewing of the above said order dated 10. 7. 87. Since the Hon'ble Judge, who passed the above said order, has ceased to be the Judge of this Court, the review petition was placed before me for disposal.
(2.) I have heard the learned counsel for the parties and have also perused the impugned order. The application for restoration was moved by the appellants under order 41 rule 19 of the Code. The said rule reads as under- 19. Re-admission of appeal dismissed for default. Where an appeal is dismissed under Rule 11, sub-rule (2), or Rule 17 or Rule 18, the appellant may apply to the Appellate Court for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit. " Bare reading of this rule shows that if a Court finds sufficient reason to allow an application and to re-admit an appeal dismissed in default, it can order re-admission of the appeal on such terms as to costs or otherwise as it deems fit. No provision has been brought to my notice which empowers a Court to impose any condition on an applicant before deciding the application for restoration. In this view of the matter, the above said order dated 10. 7. 87 is without jurisdiction. This fact is apparent on the face of the record. The impugned order is thus liable to be reviewed. Consequently, the review petition is allowed, the order dated 10. 7. 87 is set-aside and it is directed that the restoration application be now listed for hearing after two weeks. .;