Walsh and Ryves, JJ.
1. This revision has been referred to a Bench of two Judges by Mr. Justice Mukerji. The reasons for his referring it are contained in the referring order of the 9th of January, 1924, and are as follows:
The question raised in this revision is whether an application, which was dismissed for default, that application itself being one for the restoration of a suit which was decided ex parte, can lie.
On this point there seems to be no authority of this Court. The Calcutta High Court, in the case of Bipin Behari Shaha v. Abdul Barik (1916) I.L.R. 44 Calc. 950, and the Patna High Court, in the case of Ramgulam v. Sheo Deonarain (1919) 4 Patna L.J., 287, have taken contrary views.
In view of the importance of the question, I refer it to a larger Bench. The second question involved in this application is much easier to decide. But as the more important question is to be decided by a larger Bench, both the questions may be put up before that Bench.
2. We prefer the Calcutta view on this simple ground: Although the application is called an application to restore the application to set aside the ex parte decree, which application had itself been dismissed for default, it really is an application to set aside the ex parte decree, and it may be treated as such. To quote the judgment in Bipin Behari Shaha v. Abdul Barik (1916) I.L.R. 44 Calc. 950, 'the application may be treated as an original application although no fresh parties are interested in the case. The proceeding is initiated by an application which has to be numbered as a separate miscellaneous case.' If it is treated as an application to restore a previous application, we agree with the Patna view that Order IX, Rule 9, cannot be construed so as to apply to such an application. The practical objection raised to the view which we take, namely, that in this event a litigant may go on for ever and apply to restore in an uninterrupted stream of unsuccessful applications, is met by the fact, as Mr. Damodar Das points out, that such an application must be made within 30 days of the decree or of the date when the decree becomes known, and that if it is not so made, it is barred by statute. It may be that if this point had been taken, this application would have been so barred. But that is not the point on which it was referred to us. On the second question, it is obvious from the arguments of the plaintiff's vakil, that the application, of which complaint is now made, was notified to the plaintiff, The defendant has been put on terms. It is a small matter of Rs. 55, and we are satisfied that no injustice has been done by the order which would require the case to be reheard. The application as dismissed.