1. This is a revision against the order of the District Judge, Saharanpur, setting aside the order dismissing an appeal in default in the exercise of inherent powers under Section 151 of the CPC.
2. The application for setting aside the order of dismissal for default was filed in Court after lapse of 30 days of the dismissal and was therefore clearly time-barred in view of Article 1681 sch. 1 of the Limitation Act.
3. The contention in revision is that the Court was not competent to entertain the application beyond limitation and to set aside the order of dismissal in the exercise of its inherent powers.
4. It appears from the judgment under revision that the opposite party did not know of the date fixed for the hearing of the appeal. This happened in the following circumstances. The date for hearing was fixed on 28th July and notice of this date was sought to be communicated to the opposite party through registered post acknowledgment due. By 6th September, 1947 neither the registered letter returned to the Court nor the Court received the acknowledgment duly signed by the addressee. On 6th September, 1947, however, the Court dismissed the appeal for default without probably scrutinising the whole situation.
5. To consider the order of dismissal to be an order under O. 41, R. 17 of the CPC, it is necessary to hold that 6th September, 1947 was the date fixed of which the appellant had notice.
6. If the appellant had no notice of this date, the order of dismissal for default cannot be taken to be an order under O. 41, R. 17, and therefore, the provisions of O. 41, R. 19, or Article 168 of the Limitation Act, would not come into play. The position would be simply this that the Court just took out the file on a certain date, of which the appellant had no notice, and dismissed the appeal under some error. It is always open to Court and ought to be open to Court to rectify its error. This is what the Court had done.
7. I, therefore, consider the order under revision to be correct and reject this application for revision.
8. Revision dismissed.