JUDGMENT : R.C. Patnaik, J. - This revision is directed against an order dated 21-11 1985 passed by the learned Subordinate Judge, Bhadrak, in Misc. Case No. 93 of 1984 restoring the plaintiffs suit which was dismissed for default on 19-6-1984 for none appearance of either of the parties when Original Suit No. 35 of 1978 for partition was called on for hearing. 2. Upon dismissal of the suit, the plaintiff filed an application under Order 9, Rule 9 of the CPC for restoration of the suit, Labelling of the application as one under Order 9, Rule 9-, CPC, was misconceived since neither party appeared when the suit was celled on for hearing. The dismissal was under Order 9, Rule 3 CPC. Hence, the application for restoration should have been labelled as one under Order 9, Rule 4 of the Code of Civil Procedure, On the evidence led, the trial Court restored the suit subject to ' payment of cost by the plaintiff to the contesting defendant No. 1. It may be mentioned here that defendants 6, 27 to 31 and 45 to 47 were set ex parte by order dated 28-3-1979, defendants 12(Ka) to (Cha), 27 (Ka) & (Kha) and 23 were set ex parte by order dated 31-8-1982 and defendants 42 (Ka) to (Ga) were set ex parte by order dated 5-1-1983. 3. Mr. P. Misra, the learned counsel for the petitioner, basides challenging the order on merits has urged that the plaintiff having not impleaded defendants 12 (Ka) to 12 (Cha), defendants 6, 21 (Ka) and (Kha), defendants 42 (Ka) to (Ga) and defendants 45 to 47 and notices not having been taken to the said defendants in the matter of restoration of the suit, the proceeding was incompetent and the order restoring the suit was invalid. 4. Learned counsel for the opposite parties has, however, urged that the aforesaid defendants did not enter appearance. Hence they were set ex parte. Defendant alone contested the suit by filing written statement. Therefore, failure to implead the aforesaid defendants or take notices to them in a proceeding under Order 9, Rule 4, did not introduce art infirmity in the proceeding or in the order. Noticing some conflict of views in several cases of this Court, the matter was referred to a Division Bench and that is how it has come before us. 5. Noticing some conflict of views in several cases of this Court, the matter was referred to a Division Bench and that is how it has come before us. 5. The question for consideration before us is if notice to the defendants in a proceeding under Order 9, Rule 4, of the CPC is mandatory. That there was some conflict in this Court was noticed by S. C. Mohapatra, J. in Binod Kumar Agarwala and Another Vs. Mst. Satyabhama Debi. But without referring the matter to a larger Bench, he refused to follow the rule laid down in laxminarayan Agarwala v. Lachman Prasad Agarwala 39 (1973) CLT 261. and preferred the view expressed in Harmohan Senapati v. Shrimati Kamala Kumari Senapati the earliest reported in case of this Court decided by a Division Bench, several defendants had entered appearance and filed their written statements. On the date of hearing,the plaintiffs and defe ndants 4 to 12 sought adjournment which having been refused, defedant 4 to 12 filed their hazira of witnesses. There was non-appearanc of the plaintiffs when the suit was called on for hearing and, hence, the suit was dismissed for default. On an application filed under Order 9, Rule 9, CPC notice was served only on defendants 4 to 12. No notice was taken to the other defendants. The suit was restored and this Court was moved by defendants 4 to 1 2 for exercise of its revisional jurisdiction. Analysing the provisions contained in Order 9, Rules 3 and 4, Ray C. J. observed as follows ; "...If the suit had not been set down ex parte against them and if they were going to be bound by the order of restoration that had passed, I do not understand how any order affecting them could be passed in their absence. Some support is prayed in aid from the absence of a provision in the terms or the like of Sub-rule (2) of Rule 9 of the Order from Rule 4. But that does not necessarity mean that in any default under Order 9, Rule 3 restoration can be had in the absence of the opposite parties. There may be a case in which defendant has not at all appeared or having appeared has not filed any defence. But that does not necessarity mean that in any default under Order 9, Rule 3 restoration can be had in the absence of the opposite parties. There may be a case in which defendant has not at all appeared or having appeared has not filed any defence. In such cases it is quite possible that the Court in its discretion, may say that no notice in necessary to be served upon him in the matter of restoration, as he must be served against after the suit is restored to its file. But what about the case in which the defendant had eritered into contest and had put the plaintiff to proof of his case ? In these cases certainly the dismissal of the plaintiff's suit, be it under whatever provision of the Code, gives rise to a valuable right in his favour. It is difficult to conceive that they can be deprived of that right without being heard. It may be said that even without restoration the plaintiff has a right to fresh suit on the same cause of action. It may be so, but that does not answer the defendant's cause. It may be for the purpose of a fresh suit lot of money is necessary by way of payment of court-fees and the plaintiff may not be able to institute a fresh suit. There is always many a slip between cup and lip. Under the circumstances, the right to prevent restoration of the suit is no doubt valuable right." The aforesaid very aptly applies the requirement of natural justice to the procedure as contained in Order 9, Rule 4. The next decision which we may profitably refer to is the case of Prahlad Pursty Vs. Sheokh Abdul Rahman. There, the suit having, been dismissed for default of both the parties, an application under Order 9, Rule 4, CPC, was tiled. G. K. Misra, J. (as he then was) after an analysis of the provisions contained in Rules, 3, 4, 3, 9, 13 and 1.4 of Order 9, and referring to and following the rule laid down in Ratnakar Ray's case (supra) observed : "...The position, therefore, is that generally a notice to opposite party is not essential in a proceeding under Order 9, Rule 4, CPC. There may however be cases where a valuable right of the defendant may be affected. There may however be cases where a valuable right of the defendant may be affected. In such cases service of notice is mandatory." The aforesaid holding concisely gives the gist of the rule laid down in Ratnakar Ray's case (supra). The same view was also taken in Harmohan Senapati v. Smt. Kamala Kumari Senapti, (supra). G. K. Misra, C. J. referred to Prahalad Prusty's case (supra) but did not inter with the order restoring the suit having regard to the restricted jurisdiction u/s 115 of the Code of Civil Procedure. The next case for consideration is the case of Laxminarayan Agarwala v. Lachman Prasad Agarwal, 39(1973) CLT 264. There the defendants had entered appearance and filed their written statement and had also filed an application under Order 10, Rules 1 and 2 for examination of the defendants. The suit was, however, dismissed under Order 9, Rule 3 when neither party appeared when it was called on for hearing. An application under Order 9, Rule 4, CPC was filed and was allowed without issuing notice to the defendants. Following the rule laid down in Ratnakar Ray's case and in Prahalad Prusty's sass (supra) S. K. Bay, A. C. J. (as he then was) in the context of that case, namely, the defendants had entered appearance, tiled written statement ana even filed an application under Order 10, Rules 1 and 2, held that notice to them was mandatory before the; restoration of the suit because the dismissal had conferred a valuable right on them and it would be violation of principles of natural justice to deprive the defendants o1 that right without giving an opportunity of being heard. The decision in Laxminarayan Agarwails case (supra) is, therefore, in accord with the decision of the Division Bench in Batnakar Ray's case and the decision in Prahalad Prusty's case where the defendant had entered appearance, we are therefore.of the view that in view of the decision of the Division Bench in Ratnakar Ray's case (supra) and in view of the decision in Prahatad Prusty's case and Laxminarayan Agarwai's case (supra) referred to above, it is not correct to broadly lay down as proposition of law that notice to defendant in a proceeding under Order 9, Rule 4 CPC is not mandatory. Necessity of issuing notice would depend upon the facts and circumstances and the guidelines indicated in the three cases, referred to above. Necessity of issuing notice would depend upon the facts and circumstances and the guidelines indicated in the three cases, referred to above. The aforesaid view with same modification and classification has been recognised and reinforced by the Orissa Amend- ment to Order 9, Rule 4. CPC, which came into effect from 25-5-1984 and reads as under: "Provided that in cases where the defendant had entered into contest by filing his defence, no suit shall be restored without notice to him." The Orissa Amendment settles the position of law. It is unnecessary for us, therefore, to notice all the decisions of this Court. But in Benudhar Rout v. Jchhabati Mohanty and Ors., 1988 (I) OLR 389, one of us (A Pasayat, J.) has held that notice to defendant who has been set ex parfe was not necessary. 6. In view of the aforesaid statement of law, the or er of restoration passed in this case cannot be faulted. The defendants 6, 27 to 31, 45 to 47, 12(Ka) to (Cha),27 (Ka) & (Kha), 23 and 42 (Ka) to (Ca) did not enter appearance and were set ex pane. Hence, they were not necessary to be impleaded nor was it necessary to take out notice to them. We would accordingly dismiss the revision as devoid of merit. There would be no order as to costs. A. Pasayat, J. 7. I agree, Final Result : Dismissed