JUDGMENT Hon’ble S.U. Khan, J.—Heard learned Counsel for the parties. 2. Respondent No. 3 Basharat Hussain S/o Ata Ullah instituted a suit against his own father i.e. Ata Ullah respondent No. 4 (defendant No. 2) and petitioner Zaheer Alam (defendant No. 1). Suit was numbered as O.S. No. 555 of 1982 on the file of Munsif Shahjahanpur. It was alleged in the plaint that the house in dispute initially belonged to Ata Ullah father of the plaintiff who orally gifted the same to the plaintiff, and petitioner defendant No. 1 was licensee in the said house on behalf of the plaintiff. The relief claimed in the plaint was for permanent prohibitory injunction restraining the defendants from making any construction in the house in dispute or damaging or demolishing the same. Separate written statements were shown to have been filed on behalf of both the defendants admitting the claim of the plaintiff. Thereafter Munsif Court No. 1 Shahjahanpur decreed the suit on 6.11.1982. The suit was decreed under Order 15 Rule 1, C.P.C. only and only on the basis of admission contained in the plaint. Order 15 Rule 1, C.P.C. is quoted below : “Where at the first hearing of a suit it appears that the parties are not at issue on any question of law or of fact, the Court may at once pronounce the judgment.” 3. The trial Court specifically mentioned that there was no need to frame any issue. 4. Thereafter restoration applications were filed by both the defendants i.e. petitioner as well as respondent No. 2 Ata Ullah father of the plaintiff. Petitioner in his application, copy of which is Annexure 6 to the writ petition stated that fraud had been played upon him in getting his signatures on Vakalatnama and he was neither aware of the nature of the suit nor date fixed therein. In the said application details were not given. In the restoration application filed by Ata Ullah father of the plaintiff, it was stated that the other defendant i.e. petitioner informed him about the decree of the suit. Ata Ullah also denied having engaged any Counsel and he also levelled the charge of conspiracy and fraud upon his son. He stated that he was the owner of the house in dispute and he had never gifted the same to his son. Ata Ullah also denied having engaged any Counsel and he also levelled the charge of conspiracy and fraud upon his son. He stated that he was the owner of the house in dispute and he had never gifted the same to his son. He further stated that his son told him that some case was required to be filed in respect of the house tax of the house in dispute and believing him he signed upon some papers, which later on were used in the suit in question. 5. Petitioner’s restoration application being Misc. Case No. 195 of 1982 was dismissed in his default on 25.5.1984 (restoration filed by the plaintiff’s father was registered as Misc. Case No. 199 of 1983). Thereafter restoration application was filed by the petitioner on 21.7.1984 for recalling the order-dated 25.5.1984. The said application was registered as Misc. Case No. 177 of 1984. Even though no counter-affidavit was filed to the affidavit filed in support of the said application and only oral objections were raised still the said application was dismissed as barred by time. In the application and the affidavit it was stated that petitioner came to know about the dismissal order on 20.7.1984 i.e. one day before filing the restoration application. The trial Court did not disbelieve the said version still application was dismissed as barred by time. Trial Court held that no formal application for condonation of delay was filed. 6. Petitioner in his second restoration application had stated that in both the restoration applications (195 of 1982 and 199 of 1983) same dates were fixed and on 31.3.1984 the next date fixed was 20.7.1984 hence he could not come on 25.5.1984. It appears that on 31.3.1984 different dates were fixed in both the original restoration applications i.e. 25.5.1984 in the petitioner’s restoration and 20.7.1984 in the restoration application of father of the plaintiff. Both the restoration applications have been filed for setting aside the same ex-parte decree hence there was no sense in fixing different dates. If different dates were fixed then it was quite natural that petitioner was genuinely misled into believing that 20.7.1984 was the next date fixed in both the original restoration applications. The second restoration application was dismissed on 14.8.1986. Against the order dated 14.8.1986, appeal was filed by the petitioner being Misc. Civil Appeal No. 126 of 1986. If different dates were fixed then it was quite natural that petitioner was genuinely misled into believing that 20.7.1984 was the next date fixed in both the original restoration applications. The second restoration application was dismissed on 14.8.1986. Against the order dated 14.8.1986, appeal was filed by the petitioner being Misc. Civil Appeal No. 126 of 1986. Thereafter in the said appeal on 24.9.1986 an application was filed that the appeal should be treated as revision. The said appeal was dismissed on 7.10.1986 by District Judge Shahjahanpur by the following order : “None present. Counsel took time to show law for maintainability of appeal. No law showed. Appeal does not lie. Summarily rejected.” 7. This writ petition is directed against orders dated 6.11.1982, 25.5.1984, 14.8.1986 (all orders passed by the trial Court) and order dated 7.10.1986 passed by the appellate Court. 8. In the plaint it was stated by plaintiff himself that petitioner was his first cousin i.e. son of plaintiffs father’s sister. Even though petitioner in his original restoration application did not give detailed facts however in the writ petition it has been stated that petitioner is the owner of the house in dispute. It has further been stated in the writ petition that plaintiff in fact duped the petitioner and told him that suit for partition between different co-sharers was to be filed and on that pretext obtained his signatures on Vakalatnama and on some papers which were misused in filing written statement in the suit in question on behalf of the petitioner admitting the case of the plaintiff. 9. The fact that even the father of the plaintiff accused the plaintiff for playing fraud upon him and the fact that in the written statement it was shown that petitioner had admitted the entire case of the plaintiff were sufficient to set-aside the ex-parte decree. The Court is not observing any thing further in this regard as it may jeopardize the case of the plaintiff in the suit. The suit was decreed on the basis of admission in the written statement. Supreme Court in M.K. Prasad v. P. Arumugam, AIR 2001 SC 2497 has held that while considering the restoration application Court should keep in mind the judgment impugned, extent of property involved and stakes of parties. 10. The suit was decreed on the basis of admission in the written statement. Supreme Court in M.K. Prasad v. P. Arumugam, AIR 2001 SC 2497 has held that while considering the restoration application Court should keep in mind the judgment impugned, extent of property involved and stakes of parties. 10. It is highly doubtful as to whether limitation of 30 days for filing restoration application is applicable to the restoration applications which are filed for setting aside the orders dismissing the main restoration application in default (either under Order 9 Rule 4 or Order 9 Rule 13, C.P.C). Such type of second restoration application may reasonably be treated as Misc. application limitation for which is three years under Article 137 of the Schedule to Limitation Act and not 30 days as provided under Articles 122 and 123 of the said Schedule. Under Article 122, limitation of 30 days from the date of dismissal is provided for application, which is filed “to restore a suit or appeal or application for review or revision dismissed for default of appearance”. It does not include any application except application for review. However this point need not be decided finally as in the second restoration application and the affidavit filed therein sufficient ground for condonation of delay had been mentioned. Defect of want of formal application or formal prayer for condonation of delay is not fatal. 11. Accordingly writ petition is allowed. Judgment and orders dated 14.8.1986 and 7.10.1986 are set-aside. Petitioner’s restoration application filed on 21.7.1984 is allowed and order dated 25.5.1984 is set-aside. Petitioners main restoration application is also allowed and ex-parte judgment and decree dated 7.1.1982 is also set-aside on payment of Rs. 1,000/- as cost. ————