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5. Mr. Bhattacharya, the learned counsel appearing in support of this Revisional Application has contended that there were conflicting decisions of this Court on the question as to whether or not an application under Order 9, Rule 9 of the Code lies for restoration of an application under Rr. 4, 9 or 13 of Order 9 since dismissed for default. In Bipin Behari Sah v. Abdul Barik, reported in ILR 44 Cal 950 : 21 Cal WN 30 : 24 Cal LJ 446, AIR 1917 Cal 548 (1). a Division Bench of this Court has held that when an application for restoration of a Small Cause Court suit dismissed for default is itself dismissed for default.anapplicationunderO. 9,R. 9ofthe Code for revival of that application lies under the provisions of Section 141 of the Civil P.C. But in the decision made in the case of Sarat Krishna Bose v. Bisweswar Mitra, reported in ILR 54 Cal 405 : AIR 1927 Cal 534 : 31 Cal WN 576, another Division Bench of this Court has held that when an application under Order 9. Rule 9 of the Code for restoration of a suit dismissed for default has itself been dismissed for default, a second application under Order 9, Rule 9 for restoration of the first application does not lie. The Division Bench has further held in the said decision that miscellaneous proceedings to which Section 141 is applicable do not include proceedings under Order 9. The Division Bench in coming to the decision relied upon a decision of the Privy Council made in Thakur Prosad v. Fakirullah, (reported in (1895) 22 Ind App 44) wherein it was held by the Privy Council that Section 141 applied only to "original matters in the nature of suits, such as proceedings -- in Probate, Guardianships and so forth" and the expression "so forth" must be read as meaning proceedings "ejusdem generis" and does not include matters which arise from a suit or similar other proceedings. It also appears that another Division Bench of this Court in the case of Sourendra Nath Mitter v. Jatindra Nath Ghosh, reported in 32 Cal WN 811 : (AIR 1929 Cal 17) followed the decision made in the case of Sarat Krishna Bose (supra) and held that when an application under Order 9, Rule 9 for restoration of a suit dismissed for default it itself dismissed for default an application under Order 9, Rule 9 does not lie but the Court may set aside the order under Section 151 of Civil P.C. in a proper case. Mr. Bhattacharya has placed some decisions of the other High Court wherein the views taken in Sarat Krishna's case were followed. In this contention, reference may be made to the decisions of the Patna High Court , of the Orissa High Court , of the Madhya Pradesh High Court , of the Nagpur High Court reported in AIR 1932 Nag 101 and of the Bombay High Court . Mr. Bhattacharya has also drawn our attention to the contrary decisions made by some other High Courts and we may refer to the decisions of the Madras High Court reported in AIR 1926 Mad 325 and AIR 1926 Mad 654, of the Lahore High Court reported in AIR 1920 Lah 304 and of the Andhra Pradesh High Court reported in AIR 1966 Andh Pra 263. Mr. Bhattacharya has, however, submitted that in the meantime, the Supreme Court in the case of Ram Chandra v. State of U.P., () has taken a view contrary to the view expressed by the Privy Council in Thakur Prasad's case (supra). The question canvassed before the Supreme Court in Ram Chandra's case was whether a proceeding before a Civil Court arising out of a reference under Section 146(1) of the Criminal P.C. is a civil proceeding as contemplated by Section 141 of the Code. In dealing with that question, the Supreme Court observed that the expression "civil proceedings' in Section 141 is not necessarily confined to an original proceeding like a suit or an application for appointment of guardian etc. but it applies also to proceedings which are not original proceedings. Mr. Bhattacharya has, therefore, submitted that the decision of the Division Bench of this Court made in Sarat Krishna's case (supra) and also followed in Sourindra Nath Mitter's case (supra) drawing inspiration from the decision of the Privy Council in Thakur Prosad's case, therefore, does not appear to be correct. Mr. Bhattacharya has submitted that the Punjab and Haryana High Court in a case reported in AIR 1978 Punj and Har 257 and Madhya Pradesh High Court in a case (Full Bench) held that an application under Order 9, Rule 9 lies for restoration of a previous application under Order 9, Rule 9 which was dismissed lor default and the proceeding under Order 9 is a civil proceeding within the meaning of Section 141 of the Code. Mr. Bhattacharya has submitted that the aforesaid conflict as to whether or not a proceeding under Order 9 is a civil proceeding has now been set at rest by the explanation added to Section 141 by the Amending Act of 1976 which specifically says that 'proceedings' as used in Section 141 include proceedings under Order 9. Mr. Bhattacharya has, therefore, contended that after the said amendment of Section 141 of the Civil P.C. by the Amending Act of 1976, there is no further scope to contend that an application under Order 9, Rule 9 for restoration of a previous application under Rules 4, 9 or 13 of Order 9 is not maintainable. Mr. Bhattacharya has further submitted that this Court has taken into consideration the effect of amendment of Section 141 of the Civil P.C. in the decision . It has been held by this Court in the said decision that after the amendment of Section 141, if an application under Order 9, Rule 13 is dismissed for default, an application under Order 9. Rule 9 lies for restoration of such application.

7. Coming to the second question referred to the Special Bench namely what should be the period of limitation for an application for restoratioa of a proceeding initiated on an application under Order 9 when such application is dismissed for default, Mr. Bhattacharya has contended that Art. 122 of the Limitation Act prescribes the period of limitation for filinganapplicationunderR. 4or9ofO. 9of the Code and the period of limitation under Art. 122 to restore a suit or appeal or application for review or revision dismissed for default of appearance or for want of prosecution or for failure to pay costs of service of process or to furnish security for costs, is thirty days from the date of dismissal. He has contended that the said Art. 122 is, however, not attracted to an application for restoration of a miscellaneous case u nder the provisions of Order 9. A further application under Order 9 for restoration of a miscellaneous case, arising out of an application under Order 9, is not a case of any of the aforesaid descriptions viz. suit, appeal, application for review or revision. Mr. Bhattacharya has contended that there is no article in the Limitation Act of 1963 which specifically deals with the question of limitation of an application for restoration of a miscellaneous case arising out of an application under Order 9 of the Code. He has, therefore, submitted that the question of limitation of such an application should be governed by the residuary articleviz. Art. 137 and the period of limitation under Art. 137 is three years. In support of this contention, Mr. Bhattacharya has referred to the decisions made in the cases of Manindra Kumar Bose v, Santi Rani Biswas, , Union of India v. Seth Shanti Sarup, reported in AIR 1966 All 530, Sushila Bala Roy v. Madhuri Chowdhury, reported in (1936) 90 Cal WN 363 and Sm. Sayeeda Begum v. Ashruf Hossain and . In the case , the defendant died during the pendency of the suit and an application for substitution of the heirs and legal representatives of the defendant was filed within time. While such application was pending, one of the heirs of such defendant also died but no application for substitution of the heirs of such heir of the principal defendant was made within ninety days and it was contended that the suit had abated for non-substitution of the heirs of the defendant. The Division Bench of this Court held in the said decision that in construing the law of limitation, the court must confine itself strictly within the terms of the Limitation Act and should not enlarge the scope of the Act by introducing 'notional' defendant in place of the word 'defendant' as mentioned in Art. 177 of the Limitation Act, 1908. In such type of cases, the limitation should be governed by the residuary article of the Limitation Act. In the ease reported in AIR 1966 All 530, the question involved was what will be period of limitation for suhstilution of the heirs of a deceased party to an application for certificate under Art. 133 of the Constitution. The Division Bench of the Allahabad High Court held that the deceased party to such an application could not be described as 'plaintiff or 'defendant' or as an 'appellant' or a 'respondent' and for such decisions, reliance was made on the decision of this Court made in Manindra Kumar's case . In a recent decision of this Court reported in (1986) 90 Cal WN 363, the question arose what should be the period of limitation for making an application under Order 22, Rule 9 of the Code for bringing the heirs of one of the defendants in a proceeding under Order 9. Rule 13 of the Code. Relying on the decision , it has been held in the said case that the application for bringing t he heirs of the deceased defendant having been made within a year, no question of abatement has arisen. The Madhya Pradesh High Court in the case has held that if during the pendency of a miscellaneous case under Order 9, the applicant dies, the miscellaneous case does not abate if no application for substitution is filed within ninety days as provided in Article 120. The proper article of the Limitation Act applicable in such case should be Article 137. Mr. Bhattacharya has, therefore contended that the period of limitation for making an application for restoring the miscellaneous case arising out of a proceeding under Order 9 is governed by Art. 137 and as such the period of limitation is three years. He has, therefore, submitted that the second question referred to the Special Bench should be answered by indicating that an application under Order 9, Rule4 or 9 of the Code for restoring an application under Rules 4, 9 or 13 of Order 9 dismissed for default is governed by Art. 137 of the Limitation Act, 1963 and the period of Limitation is three years.

9. Coming to the question of limitation, Mr. Mitter has contended that the period of limitation for restoration of a suit dismissed for default is only thirty days from the order of dismissal. He has submitted that it will be incongruous and opposed to all reasons and equity to hold that although the period of limitation for restoration of a suit dismissed for default is only thirty days, the proceeding for restoration of such proceeding for restoring the suit itself will not be thirty days but will be governed by Art. 137, thereby enlarging the period of limitation up to three years. Mr. Mitter has contended that Art. 122 of the Limitation Act prescribes the period of limitation for making an application under Rule 4 or 9 of Order 9 of the Code. The period of limitation under that Article is thirty days from the date of the impugned order. Mr. Mitter has submitted that a party making an application under Order 9, Rules 4, 9 or 13 is intending to get the suit dismissed for default restored and the period of limitation in such case must necessarily be governed by Art. 122. If a party aggrieved by the dismissal of the suit is required to make an application within a period of thirty days from the date of the order of dismissal, by no stretch of imagination he can be permitted to make an application for restoration of such proceedings for restoration of the suit beyond the period of limitation prescribed for making an application for restoration of the suit dismissed for default. It must be contended that the miscellaneous proceedings arising out of an application under Order 9 for restoration of a suit dismissed for default must necessarily be governed by the period of limitation prescribed for making the application for restoration of the suit dismissed for default and no other period of limitation by resorting to the residuary article and the Art. 137 can be prescribed for making such application for restoration of the miscellaneous proceedings. He has, therefore, contended that the learned Subordinate Judge was justified in holding that the application was presented beyond the period of limitation and no sufficient cause was shown for revival and/or restoration of the said miscellaneous case. Mr. Mitter has also submitted that the Division Bench in referring the question of limitation to a larger Bench has noted that the acceptance of the contention of the petitioner that for making such an application for restoration of the miscellaneous case arising out of an application under Order 9 dismissed for default will be governed by Art. 137 of the Limitation Act thereby enlarging the period of limitation up to three years, will lead to an undesirable result inasmuch as though an application for restoration of a suit dismissed for default cannot be entertained beyond thirty days, an application for restoration of the application under Order 9, Rule 13 of the Code can be entertained at any time within three years from the date of dismissal of such an application. He has, therefore, submitted that the second question should be answered by indicating that the period of limitation for making an application under Order 9, Rule 4 or 9 of the Code for setting aside an order of dismissal for default of an application under Rules 4, 9 or 13 of Order 9 of the Code is thirty days from the order of dismissal of such application.

12. The Statute of limitation is a disabling act and action for claiming rights flowing from various laws is barred with lapse of time as indicated in the Limitation Act. Limitation for an action in law, therefore, has to be found within the four corners of the statute. In the aforesaid circumstances, 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. We, therefore, answer the second question by indicating that when an application made underO. 9, Rr. 4, 9 or 13 of the Civil P.C. for setting aside a suit dismissed for default is itself dismissed for default and an application under Rule 4 or 9 of Order 9 is made for restoration of the said application, the period of limitation for making such application for restoration is governed by Art. 137 of the Limitation Act, 1963 and the period of limitation is therefore three years. We may however point out in this connection that it appears to us that when the period of limitation for making an appliction under Order 9 for setting aside an ex parte decree is only thirty days from the date of the impuged order, it is highly inequitable to allow a party to avail a long period of three years under Art. 137 of the Limitation Act to make an application under Order 9 for setting aside the order of dismissal of an application made under Order 9 for setting aside ex parte decree. It appears to us that a party in whose favour an ex parte decree has been made cannot but suffer serious prejudice if the fate of the ex parte decree is allowed to hang indefinitely for three years by allowing the other party to make an application for setting aside the order dismissing the application for setting aside ex parte decree at any time within three years. We feel that Art. 122 of the Limitation Acr requires suitable amendment so as to bring the application for setting aside the order of dismissal of the application made under Order 9 for setting aside ex parte decree within the scope and ambit of Article 122.