Ranawat, J. - (1.) THIS is an application under sec. 115 of the Code of Civil Procedure against an order of the Munsif, Alwar dated 28th August, 1951 dismissing an application of the plaintiffs for restoration of their suit which had been dismissed for default on 24thoctober, 1950.
(2.) THE facts of the cases are that in a suit filed by the plaintiff's for an amount of Rs. 400/-, 19th of October, 1950, was the first date of hearing, but it was a holiday. THE case was taken up on the expiry of the holidays on the 24th October, 1950, by the court, and as the plaintiffs failed to appeal, the suit was dismissed for default. THE plaintiffs appeared on the 19th October, 1950, but as it was a holiday, they returned to their village under the impression that they would be informed of the date fixed for the hearing of the case. THEy waited till the 30th of November, 1950. when they tried to find out as to what had happened to their case, and they came to know that the suit had been dismissed for default. As the period of limitation had run against them under Art. 163 of the Limitation Act, they moved a review petition under Order XLVII, Rule 1, and claimed the benefit of sec. 151 of the Code of Civil Procedure. THE learned Munsif held that as sec. 151 did not apply to such cases inasmuch as the defendants had acquired a right, by lapse of the period of limitation, the suit could not be restored. Reliance was placed on the decisions in M. V. Sundaresa Ayyar vs. Pacala Sub-ba Rao (l) and Jagmohan Tewari vs. Mahadeo Prasad (2 ). As regards Order XLVII, Rule 1, the learned Munsif was of the opinion that the restoration petition could not be considered to be one under the provisions of Order XLVII. Rule 1. He also remarked that the plaintiffs had not paid any court fee as required by the law, and they could not be considered to be seriously contesting the petition under the provisions of Order XLVII, Rule 1 He accordingly dismissed the petition, which has given rise to this revision application. It is urged on behalf of the plaintiffs that as the case had been dismissed for default on a day which had not been fixed for hearing of the case, the court had no jurisdiction to make an order dismissing the suit for default of appearance of the plaintiffs. It is also contended that even where limitation has run against the plaintiff under Article 163 of the Limitation Act, is open to him to apply under Order XLVII, Rule 1, especially under the circumstances of a case like the present one. Reliance is placed on the decision in A. T. K. P. L. M. Muthu Pillay vs. Lakshmi-narayan (3), wherein it was held that under the peculiar circumstances of that case a review application was maintainable, although time for applying for restoration under Art. 163 of the Limitation Act had expired, The special circumstances of that case were that the suit was dismissed on a date which had not been fixed for hearing, and of which the parties had no notice. Reference is also made to Mst. Umit-Ul-Mughni Begum vs. Saligram (4), wherein it had been observed that - "where the date fixed for hearing a case happens to be a holiday, the Court is in no way justified in taking up the case on the following day and passing any order to the prejudice of any of the absent parties without duly serving upon him a fresh notice of the hearing. " In reply it has been urged that after the expiry of the period of limitation under Art. 163, it is not open to the plaintiff to have recourse to a review application under Order XLVII, Rule 1, because the language of Art. 163 is wide enough to cover all the petitions which are directed for the purpose of restoration of a suit to its original number. The decisions in Debendra Nath Dutt vs. Smt. Satyabala Dasi (5) and E. C. Decruze vs. Mrs. L. T. Pitts (6) are referred to, on this point. Sec. 5 of the Indian Limitation Act has not been extended in Rajasthan to restoration petitions under Order IX, Rule 9, of the Code of Civil Procedure. The starting point for limitation under Art. 163 of the Limitation Act is the date of the dismissal. It is immaterial whether the plaintiff had knowledge of the date or not The point which arises in this case is whether after the expiry of the period of limitation under Art, 163, it is open to the plaintiff to make an application under Order XLVII, Rule 1, in the circumstances of the present case, when the order was made on a date which had not been fixed for the hearing of it. After the decision of the case Chhajju Ram vs. Neki (7), it was held by the Bombay High Court in Mahadeo Govind Wadkar vs. Lakshminarayan Ramnath Marwadi (8), that an application for review would not lie, because such an application would not come within the scope of Order XLVII, Rule, 1, having regard to the interpretation put upon it by the Privy Council in the case referred to above. The circumstances of that case, however, were different from those which are present in the case. In the present case, the learned Munsif acted under a misconception that the date had been fixed for hearing of the case, when no such date had been so fixed. The plaintiff's, therefore, were not negligent in prosecuting their case. They remained under the impression that they would be informed of the date of hearing when fixed by the Court, and when they went to find it out, they were told that their case had been dismissed for default on a date which had not been fixed by the court for the hearing of it. The parties had been informed to appear on the 19th October, 1950, but that day was a holiday, and the parties then were not informed whether the case would be taken up after the reopening of the court or on some subsequent date. They could not have, therefore, any idea to appear on 24th October, 1950, when the case was taken up by the court, and it was dismissed. The court, under these circumstances, had no power to dismiss the suit, and it should not have expected the plaintiffs to appear on the date on which the case was taken up by the Court. The plaintiffs applied no sooner they came to know of the dismissal of the suit, Under these circumstances the plaintiffs could not be expected to file an application within the prescribed period of limitation under Art, 163 for restoration of the suit. The circumstances of this case are exactly the same as were found in the case of A. T. K. A. L. M. Muthupillay vs. Lakshminarayan (3), Art. 163 applies to all those petitions which are made by a plaintiff for setting aside a dismissal for default of appearance or for failure to pay costs of service of process or to furnish security for costs. As time had run against the plaintiffs, they did not choose to file an application under Order IX, Rule 9. They took recourse to file an application under sec. 151 or in the alternative under Order XLVII. Rule 1, of the| Code of Civil Procedure Under the peculiar circumstances of this case, it cannot be said that no remedy under Order XLVII, Rule 1 was available. The relief sought by the plaintiffs was to enable them to prosecute the case which had been dismissed on a misconception of facts by the Court acting on an error regarding the date of hearing. A review application, under the circumstances of this case, did not come within the scope of Art. 163 as the plaintiffs based their claim on an error of the court, and not on any explanation on their part for their default. The case in Debendra Nath Dutt vs. Smt. Satyabala Dasi (5), does not relate to a review application. The facts of E. C. Decruze vs. Mrs. L. T. Pitts (6), were different. In that case the lawyer of the plaintiff was informed of the date on which the case was to be heard and in the absence of the plaintiff or his lawyer the suit was dismissed for default. The plaintiff alleged that on account of the negligence of her lawyer she had come to know of the dismissal of the suit only on the date on which she applied for its restoration. The facts of the Patna case are, therefore, distinguishable, and the decision in that case cannot be taken for guidance under the peculiar circumstances of this case. The Patna case is similar to the case in Mahadeo Govind Wadkar vs. Lakshmi Narayan, which has been referred to above. Under these circumstances it is open to the learned Munsif to entertain a petition under Order XLVIII, Rule l, and to proceed to try the suit after setting aside his order which had been made under a misconception of facts. The learned Munsif failed to exercise his jurisdiction in not entertaining the review application. This application under sec. 115 is, therefore, maintainable. The plaintiffs did not pay the requisite court-fee, but the learned counsel of the plaintiffs says that they expressed their willingness to pay the court-fee, but the learned Munsiff was of the view that no such petition was maintainable. They could not, therefore, pay the necessary court-fee. This revision is accepted, and orders of the munsif dated 28th August, 1951, and of the 24th October, 1950, are set aside, and he is directed to proceed with the suit subject to the payment of the requisite court-fee by the plaintiffs on their review petition within one month form the date the record reaches the court of the Munsif. Costs of this revision will abide the result of the suit in the court below. . ;