NURNAHAR BEWA v. RABINDRA NATH DEV — 1988 DIGILAW 195 (CAL)

G. N. RAY, J. ( 1 ) THIS Revisional Application has been referred to a Larger Bench by a Division Bench presided over by Mr. Justice Anil Kumar Sen (as his Lordship then Was) for consideration by the Larger Bench the two points raised by their Lordships in the Division Bench: (1) Whether by invoking the provision of Section 141 of the Code, an application under Order 9 Rule 4 or Order 9 Rule 9 of the Code can be made for setting aside an order of dismissal for default of an application under Rules 4, 9 or 13 or Order 9 of the code? (2) When such an application is maintainable, what would he the limitation for such an application ( 2 ) THE revisional application was made under Section 115 of the Code of Civil Procedure by the petitioner Mst. Nurnahar Bewa and another against Rabindra Nath Deb and others, inter alia, challenging Order No. 40, dated 9th July, 1982 passed by learned Subordinate Judge, 2nd Court, Alipore in Miscellaneous Case No 55 of 1982. ( 3 ) THE short fact relevant for appreciating the points involved in this Special Bench Reference case may be stated as follows : -TITLE Suit No 22 of 1980 was instituted by the opposite party No. l against the petitioners being the defendants in the said suit for specific performance of a contract. The said suit was decreed ex parte and the balance of the consideration money was deposited by the plaintiffs in the said suit in Court within two months from the date of the decree and the said decree was put in execution in Title Execution Case No. 23 of 1980 for obtaining possession of the premises in question. The deed of conveyance was made, executed and. registered in January, 1981. The defendants, via. , the petitioners in this revisional application made an application under Order 9, Rule 13, read with Section 151 of the Code of Civil Procedure for recalling the said ex parte degree. On such application, Misc. Case No 4 of 1981 was started. The deed of conveyance was made, executed and. registered in January, 1981. The defendants, via. , the petitioners in this revisional application made an application under Order 9, Rule 13, read with Section 151 of the Code of Civil Procedure for recalling the said ex parte degree. On such application, Misc. Case No 4 of 1981 was started. The said Miscellaneous Case was also dismissed for default on 24th September, 1981 and on November 21, 1981, an application under Order 9 Rule 4, read with Section 141 of the Code of Civil Procedure and also under Section 5 of the Limitation Act was made by the defendant petitioners for recalling the said order of dismissal dated 24th September, 1981 passed in Misc. Case No 4 of 1981. On such application Misc. Case No. 55 of 1981 was started. The learned Munsif dismissed the said application for recalling the order of dismissal of Misc. Case No. 4 of 1981 for default on the finding that the said application for restoration under Order 9, Rule 4 read with Sanction 141 of the Code of Civil Procedure was barred by limitation and the petitioners failed to prove any sufficient cause for which the delay should be condoned in presenting the application beyond the period of limitation. ( 4 ) AT the hearing of the revisional application before the Division Bench of this Court, it was contended on behalf of the petitioners that the said application under Order 9 Rule 4 read with Section 141 of the Code of Civil Procedure was not barred by limitation but such application could be presented under the residuary article of the Limitation Act, viz. , Article 137 but by way of abundant caution a prayer for condonation of delay was made by the petitioners. It was also contended on behalf of the petitioners that when a Misc Case arising out of an application under Order 9 Rule 13 of the Code of Civil Procedure is dismissed for default, an application under Order 9, Rule 4, read with Section 141 of the Code of Civil Procedure is maintainable and the learned Subordinate Judge should have considered the said application for restoration on merits and should have disposed of the same on such consideration. It was, however, contended on behalf of the opposite parties that when the Misc. It was, however, contended on behalf of the opposite parties that when the Misc. Case arising out of an application under Order 9, Rule 13 of the Code of Civil Procedure is dismissed for default, no further application under Order 9 Rule 4 is maintainable and Section 141 of the Code of Civil Procedure is not attracted because Section 141 of the Code of Civil Procedure attract only provisions relating to procedural matters in a civil proceeding but does not apply to any substantive right. The Division Bench has noted that judicial decisions on the point as to whether or not an application under Order 9 Rule 4, read with Section 141 of the Code of Civil Procedure is maintainable against an order dismissing an application under Order 9, are not uniform add contradictory views have been taken by law courts. The Division Bench has further noted that two Bench decisions of this Court have supported the view that an application under Order 9, Rule 9 is maintainable for restoration of an application under Order 9 Rule 9 or 13 if such application is itself dismissed for default, but such decisions have not taken into consideration of the question as to whether or not provisions of Order 9 Rule 4, 9 or 13 of the Code relate to procedure or substantive right. The Division Bench was of the view that the period of limitation for making an application under Order 9 Rule 3 or 13 for restoration of an application made under Order 9 dismissed for default requires a decision and such question is of importance. Hence, reference to a Larger Bench was made by the Division Bench on the aforesaid two points and this Special Bench has been constituted by the Chief Justice for considering the aforesaid points referred to the Larger Bench. ( 5 ) MR. Bhattacharya, the learned counsel appearing in support of the Revisional Application has contended that there were conflicting decisions of this Court on the question as to whether or not an application under Order 9 Rule 8 of the Code lies for restoration of an application under Rule 4, 9 or 13 of Order 9 since dismissed for default. Bhattacharya, the learned counsel appearing in support of the Revisional Application has contended that there were conflicting decisions of this Court on the question as to whether or not an application under Order 9 Rule 8 of the Code lies for restoration of an application under Rule 4, 9 or 13 of Order 9 since dismissed for default. In Bipin Behari Sah vs. Abdul Barik (reported in ILR 44 Calcutta 950 = 21 C. W. N. 30 = 24 C. L. J. 446 = A. I. R 1917 Calcutta 548), a Division Bench of this Court has held that when an application for restoration of a Small Cause Court suit dismissed for default is itself dismissed for default, an application under Order 9 Rule 9 of the Code for revival of that application lies under the provisions of Section 141 of the Code of Civil Procedure. But in the decision made in the case of Sarat Krishna Bose vs. Bismeswar Mitra and Ors. (reported in ILR 54 Calcutta 405 = AIR 1927 Calcutta 534 = 31 C. W. N, 576), another Division Bench of this Court has held that when an application under Order 9 Rule 9 of the Code for restoration of a suit dismissed for default has itself been dismissed for default, a second application under Order 9 Rule 9 for restoration of the first application does not lie. The Division Bench has further held in the said decision that miscellaneous proceedings to which Section 141 as applicable do not include proceedings under Order 9. The Division Bench in coming to the decision relied upon a decision of the Privy Council made in Thakur Prosad vs. Fakriullah (reported in 22 Indian Appeal 44) wherein it was held by the Privy Council that Section 141 applied only to "original matters in the nature of suits, such as proceedings - in Probate, Guardianships and so forth" and the expression "so forth" must be read as meaning proceedings "ejusdem generies" and does not include matters which arise from a suit or similar other proceedings. It also appears that another Division Bench of this Court in the case of Sourendra Nath Mitter vs. Jatindra Nath Ghosh (reported in 32 C. W. N, 811) followed the decision made in the case of Sarat Krishna Bose (Supra) and held that when an application under Order 9 Rule 9 for restoration of a suit dismissed for default is itself dismissed for default an application under Order 9 Rule 9 does not lie but the Court may set aside the order under Section 151 of the Code of Civil Procedure in a proper case Mr. Bhattacharya has placed some decisions of the other High Courts wherein the views taken in Sarat Krishna's case were followed. In this connection, reference may be made to the decisions of the Patna High Court reported in A. I. R. 1958 Patna 107, of the Orissa High Court reported in A. I. R. 1966 Orissa 24, of the Madhya Pradesh High Court reported in A. I. R. 1962 M. P. 66, of the Nagpur High Court reported in A. I. R. 1932 Nagpur 101 and of the Bombay High Court reported in A. I. R. 1968 Bombay 250. Mr. Bhattacharyya has also drawn our attention to the contrary decisions made by some other High Courts and we my refer to the decisions of the Madras High Court reported in A. I. R. 1926 Madras 325 and A. I. R. 1926 Madras 654 of the Lahore High Court reported in A. I. R. 1920 Lahore 304 and of the Andhra Pradesh High Court reported in A. l. R. 1966 A. P. 263. Mr. Bhattacharya has, however, submitted that in the meantime, the Supreme Court in the case of Ram Chandra vs. State of U. P. (reported in A. I. R. 1966 S. C. 1888) has taken a view contrary to the view expressed by the Privy Council in Thakur Prasad's case (Supra ). The question canvassed before the Supreme Court in Ram Chandra's case was whether a proceeding before a Civil Court arising out of a reference under Section 146 (1) of the Code of Criminal Procedures is a civil proceeding as contemplated by Section 141 of the Code. In dealing with that question, the Supreme Court observed that the expression "civil proceedings" in Section 141 is not necessarily confined to an original proceeding like a suit or an application for appointment of guardian, etc. In dealing with that question, the Supreme Court observed that the expression "civil proceedings" in Section 141 is not necessarily confined to an original proceeding like a suit or an application for appointment of guardian, etc. , but it applies also to proceedings which are not original proceedings. Mr. Bhattacharya has, therefore, submitted that the decision of the Division Bench of this Court made in Sarat Krishna's case (Supra) and also followed in Sourindra Nath Mitter's case (Supra) drawing inspiration from the decision of the Privy Council in Thakur Prosad's case, therefore, does not appear to be correct. Mr. Bhattacharya has submitted that the Punjab and Haryana High Court in a case reported in A I R. 1978 Punjab and Haryana 257 and Madhya Pradesh High Court in a case reported in A,i. R. 1976 Madhya Pradesh 136 (Full Bench) held that an application under Order 9 Rule 9 lies for restoration of a previous application under Order 9 Rule 9 which was dismissed for default and the proceeding under Order 9 is a civil proceeding within the meaning of Section 141 of the Code. Mr. Bhattacharya has submitted that the aforesaid conflict as to whether or not a proceeding under Order 9 is a civil proceeding has now been set at rest by the explanation added to Section 141 by the Amending Act of 1976 which specifically says that proceedings as used in Section 141 include proceedings under Order 9. Mr. Bhattacharya has, therefore, contended that after the said amendment of Section 141 of the Code of Civil Procedure by the Amending Act of 1976, there is no further scope to contend that an application under Order 9 Rule 9 for restoration of a previous application under Rules 4, 9 or 13 of Order 9 is not maintainable. Mr. Bhattacharya has further submitted that this Court has taken into consideration the effect of amendment of Section 141 of the Code of Civil Procedure in the decision reported in A. I. R. 1981 Calcutta 81. It has been held by this Court in the said decision that after the amendment of Section 141, if an application under Order 9 Rule 13 is dismissed for default, an application under Order 9 Rule 9 lies for restoration of such application. ( 6 ) MR. It has been held by this Court in the said decision that after the amendment of Section 141, if an application under Order 9 Rule 13 is dismissed for default, an application under Order 9 Rule 9 lies for restoration of such application. ( 6 ) MR. Bhattacharya has further submitted that the Civil Procedure Code consists of provision termed as "the body of the Code" and the provisions relating to rules. The body of the Code cannot be uttered except by amendment effected by the Legislature but the provisions relating to the rules can more easily be altered by the amendment effected by the High Courts under the authority of Section 122 of the Code of Civil Procedure. Mr. Bhattacharya has contended that in the body of the Code there is no provision which enables a Court to set aside dismissal of a suit for default or an ex parte decree but such provisions have been provided only in the rules of Order 9. He has, therefore, submitted that it cannot be contended that the power of the Court to set aside dismissal of a suit for default or of an ex parte decree on sufficient cause being shown, is a substantive right created by the Code. He has contended that the provisions contained in Order 9 are, therefore, purely procedural and Section 141 is squarely attracted for such procedural matters and proceedings under Order 9 attract Section 141 of the Code. He has therefore, submitted that the first point referred to the Special Bench should be answered in the affirmative. ( 7 ) COMING to the second question referred to the Special Bench namely what should be the period of limitation for an application for restoration of a proceeding initiated on an application under Order 9 when such application is dismissed for default. Mr. Bhattacharya has contended that Article 122 of the Limitation Act prescribes the period of limitation for filing an application. under Rules 4 or 9 or Order 9 of the Code and the period of limitation under Article 122 to restore a subject or appeal or application far review or revision dismissed for default of appearance or for want of prosecution or for failure to pay costs of service of process or to furnish security for costs, is thirty days from the date of dismissal. He has contended that the said Article 122 is, however not attracted to an application in restoration of a miscellaneous case under the provisions of Order 9 for further application under Order 9 for restoration of a miscellaneous case, arising out of an application under Order 9, is not a case of any of the aforesaid descriptions, viz, suit, appea1, application for review or revision. Mr. Bhattacharya has contended that there is no article in the Limitation Act of 1963which specifically deals with the question of limitation of an application for restoration of a miscellaneous case arising out of an application under Order 9 of the Code. He has, therefore, submitted that the question of limitation of such an application should be governed by the residuary article, viz. , Article 137 and the period of limitation under Article 137 is three years. In support of this connnection, Mr. Bhattacharya has referred to a decisions made in the cases of Manindra Kumar Bose vs. Santi Mani Biswas, reported in 1951 Calcutta 518, Union of India vs. Seth Santi Swarup, reported in A. I. R. 1966 Allahabad 530, Sushila Bala Roy vs. Madhuri Chowdhury, reported in 90 C. W. N. 363 and Sm. Sayeeda Begum vs. Ashruf Hossain and Ors. reported in. A. I. R. 1980 Madhya Pradesh 12. In the case reported in A. I. R. 1951 Calcutta 518, the defendant died during the pendency of the suit and an application for substitution of the heirs and legal representatives of the defendant was filed within time. While such application was pending, one of the heirs of such defendant also died but no application for substitution of the heirs of such heirs of the principal defendant was made within ninety days and it was contended that the suit had abated for non-substitution of the heirs of the defendant. The Division Bench of this court held in the said decision that in construing the law of limitation, the court must confine itself strictly within the terms of the Limitation Act and should not enlarge the scope of the Act by introducing 'notional' defendant in place of the word 'defendant' as mentioned in Article 177 of the Limitation Act, 1908. The Division Bench of this court held in the said decision that in construing the law of limitation, the court must confine itself strictly within the terms of the Limitation Act and should not enlarge the scope of the Act by introducing 'notional' defendant in place of the word 'defendant' as mentioned in Article 177 of the Limitation Act, 1908. In such type of cases, the limitation should, be governed by the residuary article of the Limitation Act case reported in A. I. R. 1966 Allahabad 536, the question involved was what will be period of limitation for substitution of the heirs of a deceased party to an application for certificate under Article 133 of the Constitution of India The Division Bench of the Allahabad High Court held that the deceased party to such an application could got be described as 'plaintiff' or 'defendant' or as an 'appellant' or a 'respondent' and for such decisions, reliance was made to the decision of this Court made in Manindra Kumar's case (A. I. R. 1951 Calcutta 518) In a recent decision of this Court reported in 90 C. W. N. 363, the question arose what should be the period of limitation for making an application under Order 22 Rule 9 of the Code for bringing the heirs of one of the defendants in a proceeding under Order 9 Rules 13 of the Code. Relying on the decisions reported in A I. R. 1951 Calcutta 518, it has been held in the said case that the application for bringing the heirs of the deceased defendant having been made within a year, no question of abatement has arisen. The Madhya Pradesh High Court in the case reported in A. I. R. 1980 M. P. 12 has held that. if during the pendency of a miscellaneous case under Order. 9, the applicant dies, the miscellaneous case does not abate if no application for substitution is filed within ninety days as provided in Article 120. The proper article of the Limitation Act applicable in such case should be Article 137. Mr. Bhattacharya has, therefore, contended that the period of limitation for making an application for restoring the miscellaneous case arising out of a proceeding under Order 9 is governed by Article 137 and as such the period of limitation is three years. The proper article of the Limitation Act applicable in such case should be Article 137. Mr. Bhattacharya has, therefore, contended that the period of limitation for making an application for restoring the miscellaneous case arising out of a proceeding under Order 9 is governed by Article 137 and as such the period of limitation is three years. He has, therefore, submitted that the second question referred to the Special Bench should be answered by indicating that an application under Order 9 Rule 4 or 9 of the Code for restoring an application under Rules 4, 9 or 18 of Order 9 dismissed for default is governed by Article 137 of the Limitation Act, 1963 and the period of Limitation is three years. ( 8 ) MR. Mitter, the learned counsel appearing for the opposite parties has disputed the contentions of Mr. Bhattacharya and has submitted that Section 141 of the Code of Civil Procedure attracts only provisions relating to procedure and does not govern the substantive right. He has contended that application under Order 9 Rule 4 or Rule 9 for restoration of application under Order 9, 13 when such application itself is dismissed for default is not maintainable, because right for restoration being a substantive right, the provisions of Section 141 relating to procedural matters cannot he attracted and the position has not been changed even after the Amending Act of 1976 as sought to be contended by Mr. Bhattacharya. Referring to the decisions of the Supreme Court made in Ram Chandra's case, Mr. Mitter has contended that the proceeding in question arose out of a reference under section 146 (1) of the Code of Criminal Procedure and the question arose whether such proceeding was a civil proceeding or not within the meaning of Section 141 and in that context, the Supreme Court has decided that the said proceeding is also a civil proceeding like a suit or an application for appointment of guardian, etc. The Supreme Court has not decided in the said case as to whether or not Section 141 is also attracted in matters concerning substantive right. He has further submitted that in the case before the Supreme Court, a proceeding arose out of an application under Criminal Procedure Code and such proceeding was obviously a miscellaneous proceeding not relating to any substantive right. He has further submitted that in the case before the Supreme Court, a proceeding arose out of an application under Criminal Procedure Code and such proceeding was obviously a miscellaneous proceeding not relating to any substantive right. He has, therefore, contended that the application under Order 9 of the Code of Civil Procedure for restoring a miscellaneous proceeding under Order 9 Rule 4, 9 or 13 is not maintainable and Section 141 of the Code of Civil Procedure is not attracted to such a proceeding for restoration of the miscellaneous proceeding arising under Order 9. Mr. Mitter has submitted that the first point referred to the Special Bench should be answered in the negative. ( 9 ) COMING to the question of limitation, Mr. Mitter has contended that the period of limitation for restoration of a suit dismissed for default is only thirty days from the order of dismissal. He has submitted that it will be incongruous and opposed to all reasons and equity to hold that although the period of limitation for restoration of a suit, dismissed for default is only thirty days, the proceeding for restoration of such proceeding for restoring the suit itself will not be thirty days but will be governed by Article 137, thereby enlarging the period of limitation up to three years. Mr. Mitter has contended that Article 122 of the Limitation Act prescribes the period of limitation for making an application under Rule 4 or 9 of Order 9 of the Code. The period of limitation under that Article is thirty days from the date of the impugned order Mr. Mitter has submitted that a party making an application under Order 9 Rule 4, 9 or 13 is intending to get the suit dismissed for default restored and the period of limitation in such case must necessarily be governed by Article 122. If a party aggrieved by the dismissal of the suit is required to make an application within a period of thirty days from the date of the order of dismissal, by no stretch of imagination he can be permitted to make an application for restoration of such proceedings for restoration of the suit beyond the period of limitation prescribed for making an application for restoration of the suit dismissed for default. It must be contended that the miscellaneous proceedings arising out of an application under Order 9 for restoration of a suit dismissed for default must necessarily be governed by the period of limitation prescribed for making the application for restoration of the suit dismissed for default and no other period of limitation by restoring the residuary article and the Article 137 can be presented for making such application for restoration of the miscellaneous proceedings. He has, therefore, contended that the learned Subordinate Judge was justified in holding that the application was presented beyond the period of limitation and no sufficient cause was shown for revival and/or restoration of the said miscellaneous case. Mr. Mitter has also submitted that the Division Bench in referring the question of limitation to a larger Bench has noted that the acceptance of the contention of the petitioner that for making such an application for restoration of the miscellaneous case arising out of an application under Order 9 dismissed for default will be governed by Article 137 of the Limitation Act thereby enlarging the period of limitation upto three years, will lead to an undesirable result inasmuch as though an application for restoration of a suit dismissed for default cannot be entertained beyond thirty days, an application for restoration of the application under Order 9 Rule 13 of the Code can be entertained at any time within three years from the date of dismissal of such an application. He has, therefore, submitted that the second question should be answered by indicating that the period of limitation for making an application under Order 9 Rule 4 or 9 of the Code for setting aside an order of dismissal for default of an application under Rules 4, 9 or 13 of Order 9 of the Code is thirty days from the order of dismissal of such application. ( 10 ) AFTER considering the respective contentions made on behalf of the parties, it appears to us that the Code of Civil Procedure has got two parts which may be termed as (a) "body of the code" and (b) the "rules" Mr Bhattacharya, in our view, is justified contending that the body of the code is some what inflexible inasmuch as the same cannot be altered except by amendment by the Legislature but the rules concerning with the details and machinery for implementing the various provisions of the Code, require greater flexibility and necessarily they should be easily altered. Precisely for the said purpose, the High Courts have been empowered under Section 122 to bring suitable amendments to various rules under the orders contained in the Civil Procedure Code. Such orders and rules basically relate to the procedural matters and they get sustenance from the Sections of the Code of Civil Procedure. In our view, Mr. Bhattacharya has reasonably contended that while the Section in the Code of Civil Procedure creates jurisdiction, the rules indicate the mode in which such jurisdiction is to be exercised and the rules provide for the procedure for implementation of substantive rights created under various sections of the Code. It however appears to us that the rules under various orders of the Civil Procedure Code are not absolutely procedural but they also deal with substantive rights. For example we may refer to the provisions of Order 21 of the Code. Various rules under Order 21 indicate substantive rights given to the parties to the suit and also strangers opposing the execution of the decree. It, however, appears to us that the proceedings referred to an Section 141 of the Code of Civil Procedure are not confined to only original proceedings. The Supreme Court in Ramchandra's case has indicated that 'proceedings' under Section 141 are of wider amplitude. It also appears to us that the conflict as to whether or not a proceeding under Order 9 will be miscellaneous proceeding as contemplated in Section 141 of the Code of Civil Procedure has now been set at rest by the Amendment Act of 1976. It also appears to us that the conflict as to whether or not a proceeding under Order 9 will be miscellaneous proceeding as contemplated in Section 141 of the Code of Civil Procedure has now been set at rest by the Amendment Act of 1976. The law courts entertained different views as to whether or not a proceeding initiated on an application made under Order 9 can be treated as a miscellaneous proceeding attracting Section 141 C. P. Code or it will be a case of substantive rights outside the purview of section 141. In order to obviate the convicts in the decisions of various High Courts, an explanation has been added to section 141 of the Code of Civil Procedure by the Amendment Act of 1976 and within the expression "proceedings'", the proceedings under Order 9 have been specifically included. For such inclusive definition, it is immaterial whether the proceedings initiated on the basis of an application under Order 9 partakes the character of a substantive right or procedural matter. Whatever may be the nature of the proceedings initiated under Order 9 of the Code of Civil Procedure, such proceedings are to be treated as miscellaneous proceedings within the meaning of section 141 of the Code of Civil Procedure as amended. In our view, therefore, the application for restoration of a misc. case arising out of an application under Rule 4, 9 or 13 of order 9 for restoration of the misc. case if such misc. case itself is dismissed for default, is maintainable under order 9 read with Section 141 of the Code of Civil Procedure and the first question referred to the Special Bench is, therefore, answered in the affirmative. ( 11 ) COMING to the second question referred to the Special Bench, it appears to us that if a suit dismissed for default is required to be restored, an application for restoration under Order 9 must be made within a period of thirty days from the date of the order of dismissal. It therefore conforms to equity and justice that if the proceeding for setting aside the ex parte decree is itself dismissed for default, then the period of limitation cannot be more than the period of limitation for restoring the suit, because the purpose of restoring the miscellaneous case initiated under Order 9 is for restoring the suit itself. It therefore conforms to equity and justice that if the proceeding for setting aside the ex parte decree is itself dismissed for default, then the period of limitation cannot be more than the period of limitation for restoring the suit, because the purpose of restoring the miscellaneous case initiated under Order 9 is for restoring the suit itself. It however, appears to us that no specific provision has been provided for in the Limitation Act, 1963 for making an application for restoration of such miscellaneous proceedings arising out of an. application under Order 9 to restore a suit dismissed for default. The Limitation Act is a Statute of repose and in constructing the law of limitation, the Court should confine strictly within the provisions of the Limitation Act and should not enlarge the scope of the Act by introducing any notional meaning by implication. The Division Bench of this Court in Manindra Kumar's case (supra) has held that although for substituting an heir of a defendant in a suit, the period of limitation is ninety days but such period of limitation is not applicable if during the pendency of the application for substitution, one of the heir sought to be substituted is dead and his heirs are required to be brought on record. In such case, limitation will be governed by the residuary article of the Limitation Act because no provision of the Limitation Act specifically governs such case. The Division Bench has further held that the heir of a defendant of a suit sought to be substituted in the suit cannot nationally mean also the heir of such heir. The aforesaid Bench decision of this Court has been followed not only by this Court but also by other High Courts as indicated hereinbefore. In this connection, reference may be made to an old decision of the Privy Council made in the case of Luchmee Buksh Roy vs. Ranjit Ram Pandey reported in 20 Weekly Reporter 175. The aforesaid Bench decision of this Court has been followed not only by this Court but also by other High Courts as indicated hereinbefore. In this connection, reference may be made to an old decision of the Privy Council made in the case of Luchmee Buksh Roy vs. Ranjit Ram Pandey reported in 20 Weekly Reporter 175. On the question of interpretation and construction of the provisions of the Limitation Act, the Judicial Committee of the Privy Council has held in the said decision to the following effect : -"it has been said that this case ought to be decided on an equitable construction and not on the strict words of the Statute, their Lordships think that Statutes of Limitation like all others ought to receive such construction as the language in its plain meaning imports. Statutes of limitation are in their nature strict and inflexible enactments. " ( 12 ) THE Statute of limitation is a disabling act and action for claiming rights flowing from various laws is barred with lapse of time as indicated in the Limitation Act. Limitation for an action in law, therefore, has to be found within the four corners of the statute. In the aforesaid circumstances, it appears to us that although the period of limitation for making an application for restoration of a suit dismissed for default under Order 9 of the Code is thirty days from the date of the order of dismissal, the application for restoration of miscellaneous case arising out of such application under Order 9, when such Misc. Case is dismissed for default, is not governed by the provisions of Article 122 of the limitation Act in view of the fact that expressly in terms of the said Article 122, the miscellaneous case arising out of an application under Order 9 is not attracted and the period of limitation in such case should be governed by Article 137. Case is dismissed for default, is not governed by the provisions of Article 122 of the limitation Act in view of the fact that expressly in terms of the said Article 122, the miscellaneous case arising out of an application under Order 9 is not attracted and the period of limitation in such case should be governed by Article 137. We, therefore, answer the second question by indicating that when an application remade under Order 9 Rule 4, 9 or 18 of the Code of Civil Procedure for setting aside a suit dismissed for default is itself dismissed for default and an application under Rule 4 or 9 of Order 9 is made for restoration of the said application, the period of limitation for making such application for restoration is governed by Article 137 of the Limitation Act, 1963 and the period of limitation is, therefore, three years. We may, however, point out in this connection that it appears to us that when the period of limitation for making an application under Order 9 for setting aside an ex parte decree is only thirty days from the date of the impugned order, it is highly inequitable to allow a party to avail a long period of three years under Article 137 of the Limitation Act to make an application under Order 9 for setting aside the order of dismissal of an application made under Order 9 for setting aside ex parte decree. It appears to us that a party in whose favour an ex parte decree has been made cannot but suffer serious prejudice if the fate of the ex parte decree is allowed to hang indefinitely for three years by allowing the other party to make an application for setting aside the order dismissing the application for setting aside ex parte decree at any time within three years. We feel that Article 122 of the Limitation Act requires suitable amendment so as to bring the application for setting aside the order of dismissal of the application made under Order 9 for setting aside ex parte decree within the scope and ambit of Article 122. ( 13 ) IT may be noted in this connection that Mr. Mitter has strenuously contended that in the facts and circumstances of the case, it is quite evident that the misc. ( 13 ) IT may be noted in this connection that Mr. Mitter has strenuously contended that in the facts and circumstances of the case, it is quite evident that the misc. case was allowed to be dismissed for default without any reasonable cause and even if such application under Order 9 read with section 141 of the Code is maintainable and even if the period of limitation for making such application is governed by Article 137 of the Limitation Act, the petitioners having failed to make out any case for restoration of the said misc. case by showing that for any sufficient cause they had been prevented from appearing at the hearing of the said misc. case since dismissed for default, the application for restoration of the misc. case should have been dismissed even on merits and this revisional application, therefore, should be dismissed in any event. Mr. Mitter has also submitted that the Special Bench is also a Special Division Bench and since the revisional application is before this Bench, the Special Bench should not only answer the questions referred to it but should also dispose of the revisional application on merits in order to shorten the course of litigation. Although there is some force in the contention of Mr. Mitter, but we refrain from considering the merits of the case since the hearing was confined to the points referred to this Bench and the learned counsel for the petitioner has not advanced his arguments in support of the case for restoration on merits. We, therefore, send the revisional application before the appropriate Division Bench for disposing of the same on merits. It is reasonably expected that the Division Bench will give utmost priority to this revisional application pending for a long time and dispose of the same at the earliest. In the facts of the case, there will be no order as to costs. N. K. Mitra, J. I agree. K. M. Yusuf, J. I agree. Reference answered in the affirmative.