1. The applicant Bhanwarlal, who is the son of the original appellant Gogaram, has filed this application for restoration of the appeal dismissed for default of the appellant on the 14th November 1950. The grounds for restoration are that while the appeal was dismissed for default Gogeram was lying ill and died a few days after. The applicant had no knowledge of the dismissal for default.
2. This application was made on the 5th February 1951 when 30 days prescribed for an application for restoration of an appeal or a suit had expired. The application was apparently time barred. The learned counsel for the applicant has however argued that the applicant had 90 days to apply for substitution of his name in place of the deceased appellant after his death. The death occurred on 3rd December 1951 and the application for substitution having been made on 9th January 1951 and the application for restoration on 5th February 1951 both were in time. The learned counsel for the applicant has not been able to place any authority in favour of the view, that where all appellant dies within thirty days of the date of dismissal for default his legal representative can make an application for restoration beyond the prescribed period of 30 days from the date of dismissal. Article 168 of the Limitation Act prescribes a period of 30 days from the date of dismissal for readmission of an appeal dismissed for want of prosecution. The original applicant could not have made an application for restoration beyond 30 days from the date of dismissal. The legal representative is also in the same position, and he could not make an application for restoration beyond 30 days. The learned counsel argues that the case is a very hard one and even if Order 41, Rule, 19 C.P.C., does not apply the appeal should be restored under Section 151, C.P.C. Section 151 can be applied only when there is no other remedy open to the applicant. In the present case the appeal having been dismissed for want of prosecution the applicant had a remedy under Order 41, Rule 19. Simply because the applicant had allowed his remedy under Order 41, Rule 19 to become time-barred he cannot be given the benefit of Section 151. The learned counsel has cited a ruling reported in Laxminarayan v. Laxmibai', AIR (22) 1935 Nag 189. The facts of that case were distinguishable from the' facts of the present case. In that case the appellant had died before the date of hearing of the suit and the order of dismissal for default was made in ignorance of the death of the plaintiff. Order 9 Rule 9 did not apply to such a case and it being held that the order of dismissal in the circumstances of the case was a nullity, it was set aside under Section 151, C.P.C.
3. The case is certainly an unfortunate one but the applicant cannot have the restoration of theappeal either under Order 41, Rule 19 or Section 151, C.P.C.
4. The application is dismissed but under thecircumstances of the case we make no order asto costs.