IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.369 of 2007 Sunil Kumar Yadav alias Sunil Kr. Yadav son of Yogendra Prasad Yadav, resident of village Ram Nagar Diara Tola Sohan Rai, P.S. Bakhtiarpur, District Patna, at present 174/243 Vasundhra, Gaziabad (U.P.)…………………………………………. …….Plaintiff-Petitioner. Versus 1. Rajendra Prasad Yadav, son of Late Deodhari Prasad Yadav………………………………………………..Defendant No.1 2. Sanjay Kumar, minor son of Rajendra Prasad Yadav under guardianship of his father Rajendra Prasad Yadav…..Defendant no.2 Both sl.no.1 and 2 are residents of village Ram Nagar Diara Tola Sohan Rai, P.S. Bakhtiarpur, District Patna. 3. Yogendra Prasad Yadav son of Late Deodhari Prasad Yadav………………………………………………..Defendant No.3 4. Smt.Shanti Prasad Yadav, wife of Yogendra Prasad Yadav……………………………………………….Defendant No.4 Both sl. no.3 and 4 are residents of village Ram Nagar Diara Tola Sohan Rai, P.S. Bakhtiarpur, District Patna, at present 190 Sector 3 , R.K. Puram, New Delhi-110022. 5. Smt. Sushila Sinha, daughter of Late Deodhari Prasad Yadav and wife of Anand Mohan Sinha, resident of Anand Niwas, East Boring Road, Kavi Ram Path, Patna………………………..Defendant No.5 6. Smt. Suchita Yadav, daughter of Late Deodhari Prasad Yadav and wife of D.N. Singh, resident of East Boring Road, Kavi Raman Path, Patna. ……………………………………………….Defendant No.6 7. Smt. Shanti Prasad, daughter of Late Deodhari Prasad Yadav and wife of Dr. K.N. Prasad, resident of Civil Hospital, Sitamarhi, District Sitamarhi…………………………………...Defendant No.7 8. Nand Kumar Singh …………………………………Defendant No.8 9. Indrajeet Singh……………………………………....Defendant No.9 Both sl.no.8 and 9 are sons of Late Radha Kishore Prasad Singh, residents of Mouza Nimi, P.S. Fatuha, District Patna. 10. Smt. Chandrakala Devi, wife of Shiv Sharan Prasad , resident of Mouza Nimi, P.S. Fatuha and District Patna………………………………………………Defendant No.10 11. Smt. Subhadra Devi, wife of Shailendra Singh resident of near Sanjay Talkies Cinema, P.S. Muzaffarpur Town and District Muzaffarpur……………………………….Defendant No.11 12. Smt.Chandrarekha Devi, wife of Jai Mangal Rai, resident of Rai Bhelahi, P.S. and District Sitamarhi. ………..defendant No.12 ………….Opposite party 1st set. 13. Lalan Kumar Yadav, son of Yogendra Prasad Yadav, resident of village Ram Nagar Diara Tola Sohan Rai, P.S. Bakhtiarpur and District Patna………………………...Plaintiff No.2 …….. ….Opposite party 2nd set. 2 For the petitioner : M/s Partha Sarthy and Utsav Kumar, Advocates. For the opposite parties : none. ----------- 03/ 05.08.2009 Heard learned counsel for the petitioner. 2. This civil revision has been filed by the sole plaintiff-petitioner challenging order dated 03.11.2006 by which the learned Subordinate Judge-II, Barh (Patna) dismissed Miscellaneous Case No.13 of 2006, which was filed by the plaintiff-petitioner under section 151 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’ for the sake of brevity) for restoration of Miscellaneous Case No.09 of 2004 filed on 10.07.2004, which was dismissed for default. 3. The said Miscellaneous Case No.09 of 2004 was filed by the petitioner under the provision of Order IX Rule 4 read with section 151 of the Code for restoration of Title Suit No.31 of 1995, which was dismissed for default on 26.09.2003 when no one appeared on behalf of the plaintiff when the suit fixed for arguments, was called out before the learned trial court. 4. The aforesaid title suit (T.S. No.31 of 1995) was filed by the petitioner for declaration that the compromise petition dated 22.06.1988 and the judgment passed in Title Suit No.66 of 1983 decreeing it on 01.02.1989 on the basis of the said compromise were void and not binding upon the plaintiff and for other ancillary reliefs. The said title suit was contested by the defendants. 5. In any view of the matter, although the case has 3 a chequered history, it is quite apparent that the impugned order dated 03.11.2006 was passed and Miscellaneous Case No.13 of 2006 was dismissed only because Miscellaneous Case No.13 of 2006 was not maintainable as vakalatnama, etc. of the miscellaneous case were not executed by the petitioner, rather they were executed by their pairvikars and hence the said miscellaneous case was ab-initio not maintainable and was fit to be dismissed. 6. In the said circumstances, this court does not find any illegality or jurisdictional error in the impugned order of the learned court below and accordingly this civil revision is dismissed. 7. However, since neither Title Suit No.31 of 1995 nor Miscellaneous Case No.09 of 2004, nor even Miscellaneous Case No.13 of 2006 have been decided on merits, the plaintiff- petitioner, as prayed for, is permitted to file a fresh suit for his reliefs as claimed by him in the earlier suit, subject to the specific provisions of law. harish/ ( S. N. Hussain, J. )