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Allahabad High Court · body

1948 DIGILAW 59 (ALL)

Governor General in Council v. Mohammad Ali

1948-05-07

DAYAL

body1948
JUDGMENT Dayal, J. - This is a revision against the order of the District Judge, Saharanpur, Setting aside the order dismissing an appeal in default in the exercise of inherent power u/s 151, Code of Civil Procedure 2. The application for setting aside the order of dismissal for default was filed in Court after laps of 30 days of the dismissal and was therefore clearly time-barred in view of Article 168, Schedule 1, Limitation Act. 3. The contention in revision is that the Court was not competent to entertain the application beyond limitation and to set aside the order of dismissal in the exercise of its inherent powers. 4. It appears from the judgment under revision that the opposite-party did not know of the date fixed for the hearing of the appeal. This happened in the following circumstances. The date for hearing was fixed on the 28th July and notice of this date was sought to be communicated to the opposite-party through registered post acknowledgement due. By the 6th September 1947 neither the registered letter returned to the Court nor the Court received the acknowledgment duly signed by the addressee. On the 6th September, 1947, however, the Court dismissed the appeal for default without probably scrutinising the whole situation. 5. To consider the-order of dismissal to be an order under Order 41 Rule 17, CPC it is necessary to hold that the 6th of September 1947 was the date fixed of which the Appellant had notice. If the Appellant had no notice of this date, the order of dismissal for default cannot be taken to be an order under Order 41, Rule 17, and therefore, the provisions of Order 41, Rule 19, or Article 168 Limitation Act, would not come into play. The position would be simply this that Court just took out the fire on certain date, of which the Appellant had no notice, and dismissed the appeal under some error. It is always open to Court and ought to be open to Court to rectify its error. This is what the Court had done. 6. I, therefore, consider the order under revision to be correct and reject this application for revision.