ORDER
L. Mohapatra, J.
1. Heard learned counsel for the petitioners and learned counsel for the opposite party in both the cases.
2. W.P. (C) No. 10384 of 2003 has been filed against the order dated 15.9.2003 passed by the learned Addl.District Judge, Rourkela in Civil Misc. Application No. 44 of 2003 directing restoration of the disputed property to the opposite party.
3. W.P. (C) No. 5429 of 2004 has been filed against the order passed by the same authority in Civil Revision Proceeding No. 22 of 2003 directing restoration of the suit.
4. Shri Dash, learned counsel appearing for the petitioners in both the cases submits that the suit was dismissed for default on 12.5.2003 and against the said order the revision filed before the learned Addl.District Judge is not maintainable. There being specific provision in the statute for restoration of the suit and no appeal having been provided for under Order 43, Rule 1 C.P.C., the revision was not maintainable. There appears to be considerable force in the contention of the learned counsel appearing for the petitioners. Where a suit is dismissed for default under Order 9, Rule 8 C.P.C., an application can be filed under the very same order for restoration. Section 115 of the Code of Civil Procedure has no application in the present case to maintain a revision against the said order. However on perusal of the impugned order passed in the Civil Revision Proceeding, it appears that the suit had been posted to 12.5.2003 awaiting order of stay from the higher forum. On the said date the plaintiff-opposite party did not take any step and the suit was dismissed for default. It further appears that an interim order of stay was passed by the learned Addl. District Judge, Rourkela in Civil Misc. Appeal No. 56 of 2002, but unfortunately the same had not been communicated to the trial Court.
5. Considering all the aspects, I am of the view that in the greater interest of justice, the suit should be restored to file. Accordingly, in exercise of the jurisdiction under Article 227 of the Constitution, I direct that the Title Suit No. 113 of 2001 be restored to file of the learned Civil Judge (Junior Division), Rourkela.
6. W.P. (C) No. 10384 of 2003 is accordingly disposed of.
7. So far as W.P. (C) No. 5429 of 2004 is concerned, the same has been filed challenging the order passed by the learned Addl. District Judge, Rourkela in Civil Misc. Application No. 44 of 2003 directing restoration of disputed property to the plaintiff-opposite party. I have already held earlier that the revision before the learned Addl. District Judge was not maintainable and, therefore, no order could be passed in the application filed for restoration of the disputed property to the plaintiff-opposite party. Hence, the impugned order dated 15.9.2003 passed by the learned Addl. District Judge in Civil Misc. Application No. 44 of 2003 is unsustainable.
8. Accordingly the writ application is allowed and the order dated 15.9.2003 passed in the Civil Misc. Application No. 44 of 2003 is set aside. It will be open for the plaintiff-opposite party to file an application before the trial Court for the above purpose and if any such application is filed, the same shall be considered or its own merit.
9. Urgent certified copy of the order be granted on proper application.