Sourendra Nath Mitra vs Jatindra Nath Ghose And Anr. on 25 April, 1928
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.