MADAN LAL Vs. MELA RAM

JUDGEMENT

(1.) A decree for the recovery of Rs. 3000/ - as damages on account of alleged malicious prosecution was passed by the trial court of Munsiff, Nowshera against the respondent herein on 19 -9 -1984; An application filed by the defendant -judgment -debtor for setting aside the ex -parte judgment and decree was dismissed for default of appearance. Another application was filed for the restoration of the application which was also dismissed for default. The trial court vide its order dated 11 -1 -1986 dismissed the second application with the result that the judgment -debtor filed an appeal before the District Judge, Rajouri who accepted the same and set aside the order impugned therein. The present revision petition is directed against the order of the learned District Judge, Rajouri mainly on the ground that he had no jurisdiction to set aside the order of the trial court as the same was not appealable under O. 43 CPC. The order of the District Judge is alleged to be without jurisdiction and liable to be set aside.

(2.) I have heard the learned counsel for the petitioner and perused the record. No one has appeared in the case for the respondent.

(3.) SECTION 104 and O. 43 Rule 1 of the C. P. C. specify the orders which are appealable. Under Or. 43 R: 1 (d), order under Rule 13 of Or. IX rejecting an application for an order to set aside a decree in ex -parte is appealable. However if an application filed for setting ex -parte decree is dismissed for default, no appeal is provided under the C.P.C. The application for restoration of an application dismissed for default of appearance seeking setting aside of the ex -parte decree in fact is filed under sec. 151 CPC. Orders passed in a petition filed under sec. 151 CPC are admittedly not appealable; It is settled proposition of law that an appeal is substantive right conferred by the statute and not a mere matter of procedure. Unless the Statute authorises no appeal can be filed against an order sought to be set aside. Such right cannot be claimed by virtue of the provisions of Sec. 141 CPC either. It was held in Gaja vs. Mohd. Farukh: AIR: 1961 Allahabad 561 that an appeal was a substantive right and not a mere matter of procedure and unless it is conferred by Or. 43 CPC, it cannot be inferred by implication from Sec. 141 of the CPC. O. 43 CPC does not provide for an appeal from an order dismissing for default an application for restoration of an application under Or. 9 R. 9 and Rule 13 of the CPC. No appeal therefore lies from the order dismissing for default an application under O. 9 R. 13 of the CPC. It was also held in Ghana Sahai Vs. Durga Prasad AIR 1924 Allahabad 682 that under the C. P. C no appeal is provided for from an order dismissing an application which is for restoration of an application for setting aside an ex -parte decree and right of appeal cannot be claimed by virtue of Sec. 141 CPC when O. 43 of the C. P. C makes no provisions for the appeal. Allahabad High Court in Ram Chander vs. Tej Singh AIR: 1229 Allah: 906 had noted that there was a direct conflict between the views of the erstwhile chief court and that court, but the view later adopted appears to be in consonance with the decision of other High Courts. Reliance was placed upon Brijmohan vs. Raghoda AIR 1939 Nag: 101 wherein it was held that right to appeal was not merely a matter of procedure but one of substance. In view of the clear provisions of law and the judgments of various High Courts, it can be said that the view taken by Oudh High Court in Rameshwar Dutt Vs. Harihar AIR: 1937 Oudh 344 was not a good law and appeal against such an order could not be held to be maintainable with the aid of sec. 141 of the CPC. As the order passed by the appellate court below is without jurisdiction, the same is liable to be set aside. The revision petition is accordingly accepted and the order impugned passed by District Judge, Rajouri on 15.12.1986 is set aside and the order of trial court of Munsiff -Nowashara is up -held.