(1) Whether by invoking the provision of Section 141 of the Code, an application under Order 9, Rule 4 or Order 9, Rule 9 of the Code can be made for setting aside an order of dismissal for default of an application under Rules 4, 9 or 13 of Order 9 of the Code?
(2) When such an application is maintainable, what would be the limitation for such an application?
Calcutta High Court in Mst. Nurnahar Bewa And Anr. vs Rabindra Nath Dev And Ors. on 12 May, 1988 Equivalent citations: AIR 1988 Cal 358, (1988) 2 CALLT 32 HC, 92 CWN 1110 held:
10. After considering the respective contentions made on behalf of the parties, it appears to us that the Civil P.C. has got two parts which may be termed as (a) “body of the Code” and (b) the “rules”. Mr. Bhattacharya, in our view, is justified in contending that the body of the Code is somewhat inflexible inasmuch as the csame cannot be altered except by amendment by the Legislature but the rules concerning with the details and machinery for implementing the various provisions of the Code, require greater flexibility and necessarily they should be easily altered. Precisely for the said purpose, the High Courts have been empowered under Section 122 to bring suitable amendments to various rules under the orders contained in the Civil P.C. Such orders and rules basically relate the procedural matters and they get sustenance from the sections of the Civil P. C. In our view, Mr. Bhattacharya has reasonably contended that while the section in the Civil P.C. creates jurisdiction, the rules indicate the mode in which such jurisdiction is to be exercised and the rules provide for the procedure for implementation of substantive rights created under various sections of the Code. It however appears to us that the rules under various orders of the Civil P.C. are not absolutely procedural but they also dealt with substantive rights. For example we may refer to the provisions of Order 21 of the Code. Various rules under Order 21 indicate substantive rights given to the parties to the suit and also strangers opposing the execution of the decree. It. however, appears to us that the ‘proceedings’ referred to in Section 141 of the Civil P.C. are not confined to only original proceedings. The Supreme Court in Ramchandra’s case has indicated that “proceedings” under Section 141 are of wider amplitude. It also appears to us that the conflict as to whether or not a proceeding under Order 9 will be miscellaneous proceeding as contemplated in Section 141 of the Civil P.C. has now been set at rest by the Amendment Act of 1976. The law courts entertained different views as to whether or not a proceeding initiated on an application made under Order 9 can be treated as a miscellaneous proceeding attracting Section 141 C.P.C or it will be a case of substantive right outside the purview of Section 141. In order to obviate the conflicts in the decisions of various High Courts, an explanation has been added to Section 141 of the Civil P.C. by the Amendment Act of 1976 and within the expression “proceedings”, the proceedings under Order 9 have been specifically included. For such inclusive definition, it is immaterial whether the proceedings initiated on the basis of an application under Order 9 partakes the character of a substantive right or procedural matter. Whatever may be the nature of the proceedings initiated under Order 9 of the Civil P.C., such proceedings are to be treated as miscellaneous proceedings within the meaning of Section 141 of the Civil P.C. as amended. In our view, therefore, the application for restoration of a Misc. Case arising out of an application under Rule 4. 9 or 13 of Order 9 for restoration of the Misc. case if such Misc. case itself is dismissed for default, is maintainable under Order 9 read with Section 141 of the Civil P.C. and the first question referred to the Special Bench is therefore answered in the affirmative.
Limitation : it appears to us that although the period of limitation for making an application for restoration of a suit dismissed for default under Order 9 of the Code is thirty days from the date of the order of dismissal, the application for restoration of miscellaneous case arising out of such application under Order 9, when such Misc. Case is dismissed for default, is not governed by the provisions of Art. 122 of the Limitation Act in view of the fact that expressly in terms of the said Art. 122, the miscellaneous case arising out of an application under Order 9 is not attracted and the period of limitation in such case should be governed by Art. 137
Appeal : In Uma Datt v. Mt. Zakia Bibi, AIR 1936 All 737 a Division Bench of the Allahabad High Court has held that an appeal lies when an application under Rule 9 of Order 9 for restoration of a suit dismissed for default is itself dismissed for non-prosecution.