Sambasiva Rao, J.:— The question which arises in both these appeals is when a suit has been dismissed for default and has been subsequently restored, whether the interlocutory orders passed by the Court in the suit before the dismissal for default would be considered to be in operation during the period between the dismissal and restoration. Does the restoration of the suit revive the operation of those orders during the period between the dismissal and the restoration?
2. Since the two appeals relate to the same dispute and arise out of the same order, we will dispose them of under a common judgment. The letters Patent Appeal has been preferred by the 2nd defendant while the. Civil Miscellaneous Appeal has been preferred by the 1st defendant. In deed, She Letters Patent Appeal is preferred against the Civil Miscellaneous Appeal, which was filed by the second defendant. Since the appeal preferred by the 1st defendant was not heard along with that Civil Miscellaneous Appeal it is brought up for decision along with the Letters Patent Appeal preferred by the 2nd defendant against the dismissal of his Civil Miscellaneous Appeal.
3. O.S No. 6/70, was filed in the Subordinate Judge's Court, Gudivada, by the present 1st respondent (in the Letters Patent Appeal) for partition of certain properties and for possession of a share therein. He impleaded four defendants to the suit. The 1st defendant was his own father, the 2nd defendant was his father's elder brother, the 3rd defendant was his mother and the 4th defendant his sister, One of the defences was that there was a partition between the two brothers viz., defendants 1 and 2 and consequently the latter was not a necessary to party the suit.
4. The plaintiff filed I.A No. 1261/68 for the appointment of a Receiver. The Court acceded to this request and by its order dated 3-12-1969 appointed a Receiver for the entirety of the plaint schedule properties including those which claimed to have been allotted to the share of the 2nd defendant. Against this order the 2nd defendant filed in this Court C.M.A No. 440/69 and the 1st defendant C.M.A 441/69. A Division Bench of this Court partly allowed these appeals holding that there was no justification for the appointment of a Receiver, but at the seam time directed defendants 1 and 2 to deposit towards the maintenance of the plaintiff and defendants 3 & 4 ¼th of the income realised from the lease of the rice mills, buildings etc, within one month of their collections. The Division Bench also permitted the plaintiff to approach the trial Court for directions as to the withdrawal of the amounts thus deposited. On 31-12-1971 the suit was dismissed for default. A petition under Or, 9 Rule 9, C.P.C was filed to set aside the order of dismissal for default and restored the suit, within 30 days from 31-12-1971. By an order dated 19th of August, 1974 the Court allowed that petition, set aside the order and restored the suit. Inter alia it found that the 1st defendant misled the plaintiff's mother and next friend viz., the 3rd defendant who was no other than the wife of the 1st defendant, by pretending that the matter was compromised and that the same would be reported to the Court. Since the plaintiff's next friend was led by her husband to be under this impression, she did not appear in Court on 31-12-1971 on which day the suit was dismissed for default. Holding that this was sufficient explanation for the non-appearance of the plaintiff's next friend, the dismissal order was set aside and the suit was restored.
5. Thereupon the plaintiff filed I.A 992/74 for directing defendants 1 and 2 to make deposits as per the judgment of this Court in C.M.As 440 and 441 of 59. The two defendants resisted this application saying that when the suit was dismissed, the interlocutory orders came to an end and the restoration of the suit did not revive them. In any case, those orders passed before the dismissal of the suit would not operate during the time between the order of dismissal and the order of restoration. This contention was repelled by the trial Court and consequently the 2nd defendant preferred C-M.A 30/75 and the 1st defendant preferred C.M.A 35/75. C.M.A 30/75 alone came up for consideration before our learned brother A.V Krishna Rao, J, who dismissed it. Hence the Letters Patent Appeal by the 2nd defendant.
6. Sri N. Bapi Raju, learned counsel for the appellant in the Letters Patent Appeal argues, and the same argument is adopted, by Sri M. Krishna Mohana Rao, learned Counsel for the appellant in C.M.A 35/75, that in view of the Full Bench decision in Veeraswami v. Ramanna(1) AIR 1935 Madras 365 there can be no doubt that once the suit is restored, the interlocutory orders passed before the dismissal of the suit are also restored. But they cannot be said to be in operation during the period between the dismissal and restoration. Learned counsel argues that if such is the effect of restoration, very many anomalies will arise. He illustrates the argument by saying that if there was an alienation during that period or taking possession despite the injunction order passed before the order of dismissal, they could not be found fault with and it could not be said that alienation was bad or that the defendant who took possession, was guilty of contempt of Court.
7. We will come to the illustrations presently. But we will first deal with the effect of restoration of the suit on the enforceability of the interlocutory orders passed before the order of dismissal of the suit for default Clause (1) of Rule 9 of Or. 9, CPC. empowers the court, once it is satisfied that there was sufficient cause for non-appearance of the appellant, to set aside the dismissal upon such terms as to costs or otherwise as it thinks fit. That means, if the court is satisfied that the plaintiff was prevented by sufficient cause from appearing at the time of hearing, it can revive the suit after setting aside the dismissal order. Once the dismissal order is set aside, the parties would be placed in the position in which they were when the suit was dismissed for default. The suit will proceed after restoration as if there was no order of dismissal. Clause (1) of Rule 9 clearly means this. Therefore, it follows that the interlocutory orders, which had been passed before the order of dismissal, would also be revived along with the suit when the order of dismissal has been set aside and the suit has been restored. As we have said, this much has been conceded by Sri Bapi Raju.
8. His contention however, is that once the suit was dismissed the interlocutory orders became inoperative and again they were revived only when the suit was restored. Between the dismissal and the restoration they would be in a state of suspended animation. In other words, they would be inoperative. They cannot be given retrospective effect. We cannot accede to this contention. Once the order of dismissal is set aside on the Court being satisfied that the plaintiff was prevented by sufficient cause from appearing before the court on the appointed day, he must be restored to the position in which he was situated when the Court dismissed the suit for default. It is true that the Court has powers to limit the order of restoration in one way or the other, in view of the provision in Clause (1) of Rule 9 of Or. 9, C.P.C that the Court can make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit. Unless the Court either expressly or by necessary implication excludes the operation of the interlocutor/orders during the period between the dismissal and the restoration, it may be safely presumed that their enforcement during that period was also restored.
9. In regard to the illustrations given by Sri Bapi Raju the position stands differently. When the suit stood dismissed and before restoration if the defendant has made some alienations, the alienations would not ipso facto become invalid and unenforceable on the restoration of the suit. The plaintiff will have to take other appropriate proceedings to avoid that alienation. That is because when the alienation was made it was in accordance with law and not contrary to any order of the court. Further, the rights of strangers or third parties are brought into play during that time and simple restoration of the suit would not ipso facto affect the validity of the alienation. Likewise, when there was an injunction before the dismissal of the suit, if the defendant enters upon possession of the suit land after the dismissal of the suit for default, no proceedings for contempt of court can be taken against him after the restoration of the suit. That is also because the defendant entered upon possession of the land after the suit was dismissed and when the injunction order was not actually in force though it was revived later with the restoration. But these instances or illustrations cannot affect the general rule that when the Suit is restored the interlocutory orders and their operation during the period of interregnum are revived.
10. There is ample support to this view. A Full Bench of the Madras High Court held in Veeraswami v. Ramanna(1) supra that where an order dismissing a suit for default is set aside on an application for that purpose, the suit remains as it was on the day when it was dismissed and ail proceedings taken upto that date must be deemed to be in force when the dismissal is set aside, all interlocutory orders will be revived op the setting aside of the dismissal and similarly an order for attachment of property will also be revived. This view was expressed when the question arose in the following circumstances. There was an attachment before judgment, it was raised oh security being furnished. Thereafter the suit was dismissed for default but was later restored on an application made for that purpose, The suit was not only restored but was also decreed subsequently, the decree-holder sought to enforce the security, bond given before the dismissal of the suit for default. The Full Bench held that on the restoration of the suit, all ancillary orders were restored without any further orders and that therefore the security bond given for the raising of attachment before judgment was also restored. Consequently the decree-holder was held to be entitled to enforce the security bond. In the course Of the judgment the Full Bench approved the view of Ramesam, J. expressed in Sararratha Ayyangar v. Muthaiah Maopanar (2) A.I.R 1934 Madras 49 where the learned Judge held that in the case of a suit dismissed for default and soon afterwards restored to file in the absence of anything expressly appearing against the view interlocutory applications were restored, the suit and all incidental matters were restored to file Ramesam, J. in the latter decision observed at page 51:
In a case where there is no question of intermediate alienations between the dismissal and the restoration the question still remains whether the restoration of the suit does not restore the interlocutory orders or matters as between the parties to the suit. Such a question it seems to me should be decided with reference to the intention of the officer who passed the order restoring the suit. It is a question of the construction of the order of restoration. If he intended to restore the suit and all the ancilary matters connected with, it, they are all restored. If he did not so intend to restore all of them, they are not restored. If the order makes express reference to these matters, there is no difficulty but where there is no such express reference it is a question of construction. As a matter of general rule I would say that the intention would be to restore the suit and all incidental matters. It is as if when the suit is dismissed, the record of the suit was sent to the record room and when restored, the whole bundle was brought back to the Court file with all the matters contained in it. If there is anything expressly appearing against the view that all the interlocutory matters are restored, then one would hold that they are not so restored. In the absence of such a thing I would hold that the suit and all incidental matters are restored to file’”
In that view, the learned Judge held that the injunction petition, the order passed on it by the District Munsif, the refusal to grant the injunction by the District Judge and the revision petition to the High Court were ail restored because they were in the nature of pendants to the suit. We need not add more authority in support of the view we have taken, Sri Bapi Raju however relies on Jali Basappa v. Heerada Rudrappa(3) 1938 (2) M.L.J 1053. That was a case of alienation, and aswehve said the mere fact of restoration would not by itself make the alienation made subsequent to the dismissal but before, the restoration, invalid. Therefore, this decision does not detract in any manner from the view we have expressed and from the view the Full Bench of the Madras High Court had expressed.
11. The Second contention of the learned counsel for the appellant is that the very nature of the order makes it impossible to be restored with retrospective effect. That is because the direct ton was that the two defendants should each deposit ¼th of the income which they derived from the lease of rice mills within one month of realisation. In precise terms that order cannot now be implemented with retrospective effect. That may be so. Since the time of one month from the date of realisation of the rents had expired, they could not be deposited within one month. But that does not mean that the plaintiff cannot call Upon the defendants so to make all those deposits which fell due during the period between the dismissal and the restoration after the Court restored the suit. The contention that this will be tantamount to passing a fresh order is totally without substance. The order was already made and with the restoration of the suit it was also revived.
12. It is also pointed out that nearly three long years elapsed from the date of the dismissal before the suit was restored and the appellants cannot be made liable to pay all this amount in one lumpsum. If the petition for restoration took nearly three years time, it was not the fault of the plaintiff. As we have already said, the petition under Or. 9 Rule 9 C.P.C was filed within thirty days from the date of the dismissal of the suit for default. If the Court took all the time the plaintiff cannot be penalised. So, we repel this contention.
13. These are the contentions raised by the ‘earned counsel for the appellants in both the appeals We see no force in them and we are in full agreement with what our learned brother A.V Krishna Rao, J. has said in his judgment in C.M.A 30/75.
14. While dismissing the appeal the learned Judge adverted to the observation of the court of first instance as to whether or not the appointment of a Receiver was warranted in the event of default was a matter on which the plaintiff might seek clarification from the High Court. Since on the earner occasion it was a Division Bench that gave the direction, A.V Krishna Rao, J. felt that it is only a Division Bench that can give a clarification on this aspect. Now that we are sitting in a Division Bench, we clarify that if the defendsnts-appellants do not comply with the orders of the Court in regard to deposit, the plaintiff would be at liberty to apply to the trial court for the appointment of a Receiver and it is for that Court to make appropriate orders on that petition.
15. With this observation, the Letters Patent Appeal and the Civil Miscellaneous Appeal are dismissed with costs.