SHYAM SUNDAR AGARWAL AND CO. Vs. THE STATE OF ASSAM AND OTHERS

JUDGEMENT

(1.) BY this application under Section 115 and/or Sec. 151 of the Code of Civil Procedure the petitioner -firm has challenged the order dated 31 -7 -1971 passed by the learned Assistant District Judge, Lakhimpur District, Dibrugarh in Miscellaneous Case No. 103 of 1969. The facts leading to this Revision petition are as follows:

(2.) THE petitioner Shyam Sundar Agarwal and Co. filed a Money Suit being M. S. No. 37 of 1968, against the opposite parties for recovery of Rs. 56012.05 p due on contract work done by the petitioner. The suit was decreed ex parte on 24 -8 -1968. On behalf of the State of Assam the Government Pleader filed a petition under Order 9, Rule 13, Civil Procedure Code for setting aside the ex parte decree and for restoring the original suit to file. That petition was registered as Miscellaneous Case No. 118/68, which was however dismissed for default on 6 -11 -68. On behalf of the State of Assam the Government Pleader filed a petition under Section 151, Civil Procedure Code for restoration of Miscellaneous Case No. 118/68 to file and that petition was numbered as Miscellaneous Case No. 103/69. By order dated 31 -7 -1971 the learned Assistant District Judge allowed the Miscellaneous Case No. 103 of 1969 on condition of rectifying the defects in accordance with law and by the same order Misc. Case No. 118/68 was directed to be restored to file on removing the defects pointed out. Hence this revision petition.

(3.) IN this connection the learned Counsel for the petitioner has relied on the decision of this Court in Madanlal v. Tripura Modern Bank Ltd.,, AIR 1954 Ass 1 (FB) wherein the majority of the learned Judges held that no matter whether an application under Order 9, Rule 13 was dismissed for default or on the merits, an appeal would be competent under Order 43, Rule 1(d), Civil Procedure Code.