1. I requested Mr. Upadhiya not to argue the application on the point of law. The point of law is a difficult one and would require a decision by a Bench of two or three Judges. The question raised by Mr. Upadhiya is whether an executing Court has jurisdiction to restore under O. 9, R. 9 of the CPC, an application to set aside a sale under O. 21, R. 90. The facts here are such that there was practically no order of dismissal. It appears that the judgment-debtor was called out by Court and his-pleaders declared that they had no instructions. The Court dismissed the application in default and immediately, afterwards the man appeared in Court and applied for restoration. If I had been the trial Court I would have immediately withdrawn my order.
2. I remember once the pronouncement of Mr. Justice Aikman in this Court that no orders of dismissal in default should be passed till the end of the day when the Court was rising because there could be no default until the Court rose for the day. In the present case, in my opinion there was no default and the order of dismissal in default may be taken as a mistaken one and the Court had inherent power to rescind it as laid down in S. 151. I dismiss this application but make no order as to costs.
N.K
3. Application dismissed.