Virupakshi Gowd vs Bandappa

Kumaraswami Sastri, J.—The only question is whether a party can apply for a review of judgment under Order 47, Civil Procedure Code, when his suit has been dismissed for default under Order 9, Rule 8 and he does not apply under Rule 9 to set aside the order.

There is so far as I can see nothing in Order 47, which prohibits a party from applying for a review in cases where he has another remedy provided for him in the Code.

In Raj Narain Purkait v. Ananga Mohan Bhandari ILR (1899) C. 598 it was held that a plaintiff whose suit was dismissed u/s 102 of the CPC was entitled to apply for review without applying for restoration u/s 103. In Lalachet Narain Sahi v. Ratnpal Manjhi 16 C.W.N. 643 it was held that a defendant against whom an ex parte decree has been passed can apply for review without proceeding under Order 9, Rule 13, Civil Procedure Code. I have been referred to Deodip Singh v. Gopal Singh (1916) 1 Pat. L.J. 547 where a contrary view was held but with all deference it seems to me that where there is nothing in the Code to limit the parties to one particular mode of procedure, the fact that they can get a longer period of limitation by adoption of a particular course is no ground for refusing relief. Probably in a very large majority of cases a party whose suit has been dismissed for default cannot urge any of the grounds which the law requires for granting review, but there is no reason for holding that an application for review will not lie in cases of dismissal of a suit for default.

I set aside the order of the lower court and remand the petition for disposal on the merits. Costs of the Civil Revision Petition to abide and follow the result.