1. An ex parte decree was passed against the petitioner, who applied within time to set it aside. While the application was pending, he was arrested on the 4th February, 1946, and did not appear on the adjourned date, the 8th February 1946. His Vakil reported to instructions; and his application was dismissed. He was released from jail on the 17th October, 1946, and he filed the present application on the 28th October, 1946, to set aside the order of dismissal. The District Munsiff of Udumalpet held that he had no jurisdiction to set aside the dismissal for default; because the application had not been fieled within 30 days of his order.
2. It has been held by this Court that when an application under Order 9, Rule 13, has been dismissed for default, an application under Order 9, Rule 9, to set aside the order of dismissal for default will lie. If so, then under Article 163 of the Limitation Act an application would have to be filed within thirty days of the order of dismissal. It was held in Sundaresa Iyer v. Subba Rao : AIR1933Mad258 , and in cases which followed it that the Court had no inherent jurisdiction to extend the time, and that Section 5 of the Limitation Act had no application to proceedings of this kind.
3. The argument put forward on behalf of the petitioner is that Order 9, Rule 9, applies only to cases of voluntary absence from the Court and not to involuntary absence such as in this case. The wording of Order 9, Rule 9, does not suggest that it applies only to voluntary absence. If a person is ill, for example, his absence may be just as involuntary as, if he were in jail. The distinction sought to be made is that a person who is ill has still some measure of volition which he can exercise to instruct counsel to represent him in the Court proceedings. It seems to me that the power of a person in jail is greater than that of a person who is ill. There is nothing to prevent a man who was been arrested and is on remand from giving instructions to his legal adviser with regard to, his litigation; and he did presumably instruct vakils in connection with the case arising out of the offence of which he had been arrested. I find no reason for thinking that Order 9, Rule 9, does not apply; if so, then admittedly the application was barred by Limitation, and the lower Court rightly refused to entertain the application before it. This civil revision petition is dismissed with costs.