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 revision order of the 9th of January 1924, and are as follows:
2. The question raised in this revision is whether an application for restoration, which was dismissed for default, that application itself being one for the restoration of a suit which was decided ex parte, can lie.
3. On this point there seems to be no authority of this Court. The Calcutta High Court, in the case of Bepin Bihari Saha v. Abdul Bank, 85 Ind. Cas. 613 ;141 C. 950 : 24 C.L.J. 416 : 210. W.N. 30 and the Patna High Court, in the case of Bamghulam v. Sheo Deonarain Singh 51 Ind. Cas. 152 : 4 P.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.
4. 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 Bihari Shaha v. Abdul Barik 85 Ind. Cas. 613 ;141 C. 950 : 24 C.L.J. 416 : 210. W.N. 30 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 agreewith the Patna view that Order IX, rule 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 on the date when the deoree becomes known, and that, if it is not so made, it is barred by Statute. It may be that if that 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 tobe reheard. The application is dismissed.