Order 9 cpc

Querist : Anonymous (Querist) 27 October 2011 This query is : Resolved
can a plaintiff apply for setting aside order passed in default when suit for limitaion is expired when he sought for restoration of suit.can court restore his suit under inherent powers.
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ajay sethi (Expert) 27 October 2011
for restoration of suit dismissed for default you have to take out notice of motion for setting aside order of dismissal . the court after hearing both parties may set aside order of dismissal on payment of costs

Raj Kumar Makkad (Expert) 27 October 2011
If the original suit was within limitation and the same was dismissed on default but if the same is restored even though if fresh suit would have been filed, it would have been beyond limitation even then it shall be within limitation because the original suit has been restored containing its old filing the period lapse shall be treated as incurred in litigation.

prabhakar singh (Expert) 27 October 2011
When a suit is dismissed in default u/o 9 r2or u/ r3 then plaintiff has two options:
1]He can file a restoration;or
2]he can file a fresh suit provided the fresh suit has not become time barred from the date of cause of action stated in dismissed suit.

If he exercises option 1 benefit under section 5 of limitation Act is available in case restoration is filed beyond prescribed
period of 30 days.But for fresh suit option no benefit of limitation of even a day would be available.

In a circumstance where plaintiff defaults to appear and the suit is dismissed in presence of defendant U/O9R8 NO FRESH SUIT BUT ONLY RESTORATION IS ALLOWED TO BE FILLED U/O 9 R9 AND HERE ALSO DELAY IF ANY IN FILING OF RESTORATION CAN BE CONDONED BY COURT U/S 5 OF LIMITATION ACT.

Querist : Anonymous (Querist) 27 October 2011
thankx prabhakar sir

Arun Kumar Bhagat (Expert) 28 October 2011
Well replied By Mr.Prabhakar Singh,nothing to add.

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