MANU/AP/0081/1978

Equivalent Citation: AIR1978AP30

IN THE HIGH COURT OF ANDHRA PRADESH

Letter Patent Appeal No. 59 of 1976 and A.A.O. No. 35 of 1975
Decided On: 02.02.1977
Appellants: Nandipati Rami Reddi and Ors.
Vs.
Respondent: Nandipati Padma Reddy and Ors.
Hon'ble Judges:
A. Sambasiva Rao and S. Madhusudan Rao, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: N. Bapi Raju and Krishna Mohana Rao, Advs.
For Respondents/Defendant: M.B. Rama Sarma and S. Krishna Mohana Rao, Advs.
Case Note:
Civil - restoration of suit - Order 9 Rule 9 of Code of Civil Procedure, 1908 -
suit filed for partition of properties dismissed for default - interlocutory Orders
passed by Court in suit before dismissal for default - subsequently suit
restored by Court - whether restoration of suit revives operation of Orders
during period between dismissal and restoration - once dismissal Order is set
aside
satisfied parties would be placed in position in which they were when suit
was dismissed for default - suit will proceed after restoration as if there was
no Order of dismissal - held, unless Court excludes operation of interlocutory
Order passed during period between dismissal and restoration it is presumed
their enforcement during that period also restored.

JUDGMENT
A. Sambasiva Rao, J.
1. The question which arises in both these appeals is when a suit has been dismissed
for a 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. Indeed, the Letters Patent Appeal is preferred against the Civil
Miscellaneous Appeal which was filed by the 2nd defendant. Since the appeal preferred
by the 1st defendant was not heard along with that Civil Miscellaneous Appeal, it is

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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 first
defendant was his own father, the 2nd defendant was his father's elder brother, the
third 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 party to 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 were claimed to have
been allotted to the share of the 2nd defendant. Against this order the second defendant
filed in this Court C. M. A. No. 440/69 and the 1st defendant C. M. A. No. 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 same time directed defendants
1 and 2 to deposit towards the maintenance of the plaintiff and defendants 3 and 4,
1/4th of the income released 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 O. 9, R. 9, C. P. C. was
filed to set aside the order of dismissal for default and restore 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 69. 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. 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 MANU/TN/0110/1934 : AIR 1935 Mad 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 much anomalies will arise. He illustrates the

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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 the 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 R. 9 of O. 9, C. P. C. 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 R.
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 dismissed the interlocutory orders
became inoperative and again they were revived only when the suit was restored.
Between the dismissal and 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 cl. (1) of R. 9 of O. 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 interlocutory
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, there was
an injunction before the dismissal of the suit, if the defendants enters upon possession
upon 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

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Veeraswami v. Ramanna (MANU/TN/0110/1934 : AIR 1935 Mad 365) (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 all proceedings taken upto
that date must be deemed to be in force when the dismissal is set aside, all
interlocutory orders will be revived on 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 on 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 security bond. In the course of judgment the Full Bench
approved the view of Ramesam J. expressed in Saranatha Ayyangar v. Muthiah
Moopanar MANU/TN/0093/1933 : AIR 1934 Mad 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 that interlocutory applications
were restored to file. Ramesam, J. in the latter decision observed at p. 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 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 construction of the order of restoration. If he intended to restore
the suit and all the ancillary 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
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 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."
11. 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 all 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
MANU/TN/0351/1938 . That was a case of alienation and as we have 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.
1 2 . 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 the retrospective effect. That
is because the direction was that the two defendants should each deposit 1/4th of the

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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 rents had
expired, they could not be deposited within one month. But that does not, mean that
the plaintiff cannot call upon the defendants to make all those deposits which fell due
during the period between the dismissal and 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.
13. 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 O.
9, R. 9, C. P. C. was filed within thirty days from the date of dismissal of the suit for
default. If the Court took all the time the plaintiff cannot be penalised. So, we repel this
contention.
14. These are the contentions raised by the learned 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.
15. 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 the 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 earlier 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
gave a clarification on this aspect. Now that we are sitting in a Division Bench, we
clarify that if the defendants-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.
16. With this observation, the Letters Patent Appeal and the Civil Miscellaneous Appeal
are dismissed with costs.
17. Appeals dismissed.

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