1. This is a revision by the plaintiffs in a suit for redemption. The plaintiffs, Vyas Magraj and others, sued Harnarayan and Jainarayan for redemption of certain house property situated at Jodhpur alleged to have been mortgaged in St. 1923 for Rs. 200/- (Bijaishahi). The defendants denied the right of redemption claimed by the plaintiffs, pleaded lack of jurisdiction in the Court and claimed Rs. 1225/- as cost of improvements. The trial Court, after inquiry, passed a preliminary decree for redemption on payment of the mortgage amount plus Rs. 1225/- spent on improvements. The plaintiffs filed an appeal urging that they were not liable for the cost of improvements. The defendants also filed an appeal urging that the lower Court had no jurisdiction and that the plaintiffs were not entitled to any relief. The appellate Court accepted the appeal of the defendants and directed return of plaint to be presented to a Court having jurisdiction. The appeal by the plaintiffs automatically failed. The plaintiffs filed a second appeal to the High Court and their appeal was accepted and directions were issued to the first appellate Court to rehear the appeals and to make certain inquiries. The appeal by the plaintiffs and the defendants were registered again for hearing and the first appellate Court directed issue of notice to the parties. The plaintiffs' appeal is still pending. In regard to the appeal by the defendants, it was dismissed for default on 20-11-1947.
2. Harnarayan filed a petition for restoration of the appeal on 3-12-1947 but it was dismissed for default. He filed another application for restoration of his earlier application for restoration of the appeal on 4-8-1948.
3. Jainarayan filed a petition for restoration of appeal on 8-3-1949. Both these petitions were opposed by the plaintiffs but the learned Civil Judge at Jodhpur restored the appeal having accepted the petitions filed by Harnarayan and Jainarayan. The plaintiffs have filed this revision against the aforesaid order of the Civil Judge dated 23.8.1949. During the course of arguments it appeared that it would be proper to hear arguments in respect of the petition for Jainarayan first.
4. It was contended by the counsel for the petitioner that under Article 168, Limitation Act, the period prescribed for filing a petition for restoration of an appeal dismissed for default was thirty days from the date of the order of dismissal and the petition filed by Jainarayan being much later than the above period was not entertainable. On behalf of the opposite party, it was contended that the notice of hearing of appeal issued by the first appellate Court after remand was not served on Jainarayan and, therefore, the dismissal without intimating the appellants of the date of hearing was contrary to law and that in such a case the provisions of Article 168 were not applicable. Reliance was placed on Md. Ali v. G. G. in Council, A. I. R. (36) 1949 ALL. 36: (1948 A. W. R. H. C. 310), Anandi Prasad v. Jhamman Lal, A. I. R. (37) 1950 Ajmer 6 and Atamahomed v. Shankar Das, A. I. R. (11) 1924 Lah. 279: (68 I. C. 618). It was urged for the petitioners that according to a passage in the commentary on Order 41, Rule 17, Civil P. C., by Chitaley, it is the duty of the parties to ascertain the date of hearing of the appeal on remand by a superior Court. It, however, appears from the observations in Sheikh Baldar v. Sheik Imam, A. I. R. (12) 1925 Nag. 31; (76 I. C. 46) that these observations are with reference to the practice prevailing in the Nagpur Courts. In the present case, notices were directed to be issued to the parties on receipt of files from the High Court and on the date of hearing prior to 20-11-1947, notices were as a matter of fact, issued for the information of Jainarayan to appear on 20-11-1947 which was the date fixed for hearing. One copy of notices were directed to be issued through the Head of Department where Jamarayan was serving and the other was directed to be served by post. On 20th November, the Court does not seem to have taken into consideration whether the notices on Jainarayan had been served but proceeded to dismiss the appeal for default by observing that Harnarayan was absent in spite of notice. Actually the notice were not served. Jainarayan had thus not received any notice of the date of hearing and, therefore, there was sufficient reason for his non-appearance on that date. The learned counsel for the petitioners relied on Firm Anant Bam Mangat Ram v. Firm Ram Sarup, A.I.R. (24) 1937 Oudh 426: (13 Luck, 485) where it has been held that Article 168, Limitation Act, will apply even in cases where the appellant had no notice of the date of dismissal of his appeal. The said authority is silent as to whether in that particular case the notice of date of hearing had been served on the appellant and is clearly distinguishable. It has been held in Md. Ali v. G. G. in Council, A. I. R. (36) 1949 ALL 36 : (1948 A. W. R. H. C. 310), that where the appellant had no notice of the date of hearing, the dismissal of the appeal is not an order passed under Order 41, Rule 17 and, therefore, the provision of Order 41, Rule 19 or Article 168, Limitation Act, did not come into play, and the restoration of the appeal could be done in exercise of the powers under Section 151 of the Code. With great respect, I agree with that opinion. The dismissal having been made under an error, it should be open to the Court to rectify that error on petition being made in that behalf. The petition for Jainarayan was thus rightly accepted by the lower Court and the restoration of the appeal was also rightly made.
5. As Jainarayan holds joint rights with Harnarayan, the entire case can and should be re-opened and it would not be of any help to the plaintiffs if Harnarayan does not remain a party to the appeal. In the circumstances, the order of restoration in favour of Jainarayan will operate in favour of Harnarayan as well.
6. It is not necessary to deal with the order of the lower Court accepting Harnarayan's petition for restoration as well. This petition for revision is, therefore, dismissed with costs.