B.P. JHA, J.

(1.) The plaintiffs preferred appeal under Order 43 (1) (c) of the Code of Civil Procedure against an order rejecting an application under Order 9, Rule 9 of the Civil P. C.

(2.) The plaintiffs filed a partition suit (Title Suit No. 108 of 1965) before the Subordinate Judge, Bhagalpur. On 1st June, 1970 the suit was dismissed for default of the plaintiffs. Thereafter, the plaintiffs filed an application under Order 9, Rule 9 of the Civil P. C. for setting aside the order of dismissal of the suit on the ground mentioned in the petition. In the application under Order 9, Rule 9 of the Civil P. C. these plaintiffs (appellants) stated that plaintiff No. 1 was in-charge for doing Pairvi in the case and he could not come on the date fixed for hearing for the simple reason that his mother was seriously ill. It was also stated in the petition that plaintiff No. 2 could not be present as he was medical practitioner at Naugachhia. The Court fixed 13-2-71 for hearing of the petition under Order 9, Rule 9 of the Civil P. C. When the case was called on 13-2-71, the plaintiffs were absent and ,as such the Miscellaneous Case No. 53 of 1970 was dismissed for non-prosecution. Miscellaneous Case No. 53 of 1970 arose out of the application filed by the appellants under Order 9 Rule 9 of the Civil P. C. It is against this order that the plaintiffs have preferred an appeal to this Court. Tt is mentioned in the order-sheet dated 13-2-71 that at 3 p.m. a petition for time as well as a petition under Section 151 of the Civil P. C, were filed by the appellants. The Court below rejected the petition under Section 151 of the Civil P. C. on the ground that the order dismissing the application under Order 9, Rule 9 of the Civil P. C. is appealable.

(3.) The short point for consideration in this appeal is :-- Whether the petition under Section 151 of the Civil P. C. is maintainable in a case where the petition under Order 9, Rule 9 is dismissed for default

(4.) In my opinion, even though a petition under Order 9, Rule 9 of the Civil P. C. is dismissed for default, a petition under Section 151 of the Civil P. C. is maintainable in view of the decision of the Full Bench of this High Court in Civil Revn. No. 713 of 1970 (Bajrang Rai v. Ismail Mian dated 12th May, 1977) : (AIR 1978 Pat 339 ). In that case it has been held that where an application under Order 9, Rule 13 of the Code has been dismissed for default, an application under Section 151 of the Code is maintainable for restoring an application under Order 9, Rule 13 of the Code. The same analogy applies in the present case. In the present case, the application under Order 9, Rule 9 of the Civil P. C. was dismissed for default on 13-2-71 and on the same date these appellants applied for restoration of the hearing of the petition under Section 151 of the Civil P. C. The Court below rejected the petition under Section 151 of the Civil F. C. for the simple reasons that this petition is not maintainable, as the party can prefer an appeal under Order 13, Rule 1 (c) of the Civil P. C. The Full Bench was of the opinion that though the appeal can be preferred against the dismissal of default of an application under Order 9, Rule 13 of the Civil P. C. there is no bar for the attendants to move an application under Section 151 of the Civil P. C. In other words the Full Bench (supra) overruled the decision in Doma Choudhary v. Ram Naresh Lal. (AIR 1959 Pat 121 ). Relying on the Full Bench decision (supra) I set aside the order of dismissal for default dated 13-2-1971 and direct the Court below to hear the restoration petition filed under Section 151 of the Civil P. C.

(5.) In the result, the application is allowed and the impugned order dated 13-2-1971 is set aside and the case is being sent back to the Court below for fresh hearing of the petition filed by the appellants under Section 151 of the Civil P. C. The parties will bear their own costs.