Om Chandra vs Smt. Sheobrat Koer and Others

B.N. Agarwal, J.—This revision application is directed against the order, dated 12-7-1985 passed by the learned Munsif by which has rejected the application u/s 151 of the CPC which was registered as Miscellaneous Case No. 21 of 1984 on the sole ground that, the said application was barred by limitation.

The short facts, for deciding the point raised in this case are that an application under Order IX, Rule 13 of the CPC (hereinafter referred to as the ''Code'') was dismissed for default on 11-9-1982. Thereafter, it appears that an application under Order IX, Rule 4 of the Code was preferred which was dismissed on the ground that the same was not maintainable against which a revision was filed in this Court but ultimately the same was withdrawn. Later on, in the year 1984 an application u/s 151 of the Code was filed for restoration of the petition under Order IX, Rule 13 of the Code. By by the impugned order the court below has rejected the said application on the sole ground that the same is barred by limitation.

Learned Counsel appearing on behalf of the petitioner contended that there is no period of limitation prescribed under the Limitation Act for filing the application for restoring the application under Order IX, Rule 13 of the Code. According to the learned Counsel the only provision which would have applied to such a petition was Article 122 of the Limitation Act, 1963 (hereinafter referred to as the ''New Limitation Act'') which reads thus:

______________________________________________________________ Article Period of Limitation Time from which period begins to run ______________________________________________________________ 1 2 3 ______________________________________________________________ 122. To restore a suit or Thirty days The date of dis- appeal or applica- missal tion for review or revision dismissed for default of appea rance or for want of prosecution or for failure to pay costs of service of process or to furnish security for costs. ____________________________________________________________

Upon a bare perusal of the aforesaid provision it would appear that Article 122 of the New Limitation Act applies only to such restoration applications which are filed for restoration of suit, appeal or application for review or revision which have been dismissed for default. By no stretch of imagination it can be said that an application under Order IX, Rule 13 of the Code will come within the ambit of the afore said provision. No other provision could be pointed out to me prescribing any period of limitation for filing a restoration application for restoring an application under Order IX, Rule 13 of the Code which was dismissed for default.

Now, the question arises as to whether the residuary Article, i.e.. Article 137 of the New Limitation Act would apply to such an application or not which reads thus:

________________________________________________________________ Article Period of Limitation Time from which period begins to run ________________________________________________________________ 137. Any other applica- Three years When the right to tion for which no apply accrues, period of limita- tion is provided elsewhere in this Division. ___________________________________________________________________

Wording of residuary Article, i.e., Article 181 of the Limitation Act, 1908 (hereinafter referred to as the ''Old Limitation Act'') which reads thus was quite different:

___________________________________________________________________ Article Period of Limitation Time from which period begins to run ___________________________________________________________________ 181. Application for which Three years When the right to no period of limita- apply accrues, tion is provided else where in this Schedule or by Section 48 of the Code of Civil Procedure, 1908 (V of 1908). ____________________________________________________________________

It has been settled by the various decisions of this Court as well as the apex court that Article 181 of the old Limitation Act was applicable to applications filed only under the CPC and to no other application, So far the present application is concerned the same is u/s 151 of the Code of Civil Procedure. Even the residuary article namely, Article 181 of the Old Limitation Act was applicable to the case in hand, but since the present miscellaneous case has been filed in the year 1984 after coming into force of the new Limitation Act which came into force from 1st January, 1964, the question to be considered is whether Article 137 of the new Limitation Act would apply to the present restoration application. My answer to the question posed by me is emphatically in the affirmative. Article 137 of the new Limitation Act is very wide. It takes within its ambit application filed under special statutes besides applications filed under the Code. There are various decisions of this Court as well as of the Supreme Court that this Article shall apply not only to applications filed under the CPC but also to applications filed under special statutes. The application disposed of by the impugned order having been filed u/s 151 of the Code, in any view of the matter. Article 137 of the new Limitation Act does apply to the same and the period of limitation prescribed thereunder is three years.

An application under Order IX, Rule 13 of the Code was dismissed for default by order, dated 11-9-1982 on which day only the right to apply for restoration accrued to the petitioners. Since the present application was filed in the year, 1984, the same was well within time. In my view the court below has committed material irregularity in the exercise of jurisdiction in holding that the application disposed of by the impugned order was barred by limitation. Accordingly I have no option but to allow this application which is accordingly allowed, the impugned order is set aside and the court below is hereby directed to dispose of Miscellaneous Case No. 21 of 1984 on its merit in accordance with law after affording reasonable opportunity of hearing to the parties. In the circumstances of the case, I direct that the parties shall bear their own costs.