ALLAHABAD HIGH COURT

                                                 Abida Khatoon

                                                        Vs.

                                                   Chote Khan

                   Civil Revn. No. 1230 of 1950. against Order Of Dist. J. Mainpuri
                                                  (Agarwala, J.)

                                            06.10.1950. 26.09.1955

                                                     ORDER

Agarwala, J.

1. This is an application in revision arising out of proceedings taken at the instance of the
applicants under Section 476, Criminal Procedure Code. There was a civil suit No. 352 of 1942,
decided by the court of Munsif, Shikohabad, for ejectment from a house and arrears of rent. The
suit was decreed on 30-9-1943. Thereafter the plaintiffs filed an application under Section 476,
Criminal Procedure Code, against four of the defendants and eight others for their prosecution
under Section 193 and other sections of the Penal Code. On 25-5-1946 this application was
allowed ex parte and an order for die prosecution of the opposite parties was made. They went up
in appeal to the District Judge who, however, dismissed the appeal for default of appearance on
11-12-1948. The defendants then filed, an application for setting aside the ex parte order of
dismissal and for restoration, of the case to its original number. This application was allowed. In
the present application in revision the plaintiffs contend that the court below had no jurisdiction
to restore the appeal dismissed for default because the Criminal Procedure Code does not provide
for the same. As the proceedings initiated under Section 476 Criminal Procedure Code, arose out
of civil proceedings and were heard by a civil court and as an appeal under Section 476B of the
Criminal Procedure Code also lay to the civil court, the proceedings must be treated as civil
proceedings to which the Civil Procedure Code applies and not criminal proceedings to which
the Criminal Procedure Code will apply, barring of course Sections 476, 476A and 476B of the
Criminal Procedure Code, vide - 'Jarbandhan v. Emperor1', - 'Nawab Ali v. Madhuri2', and -
'Valab Das v. Maung Ba Than3', If these were civil proceedings and the Civil Procedure Code
applies, then although the appeal is provided for in Section 476B, Criminal Procedure Code, its
procedure for hearing would be governed by Order 41, Civil Procedure Code, and as such when
the appeal is dismissed for default and an application for its restoration is made under Order 41,
Rule 19, Civil Procedure Code, the lower court has jurisdiction to restore the appeal.
2. There is no force in this revision. It is accordingly dismissed. The opposite parties

1 AIR 1946 All 245 3 AIR 1924 Ran 54
2 AIR 1927 Oudh 14

are entitled to their costs of this revision.
Revision dismissed.