MAHARAJ KISHORE KHANNA Vs. KIRAN SHASHI DASI

JUDGEMENT

(1.) In this case a preliminary point has been taken that no appeal lies. On the 9 of May 1920, the plaintiff did not appear and the suit, was dismissed for want of prosecution : and, on the 15 of, July, 192l, my learned brother. Mr. Justice Greaves, made an order, as he describes it in his Judgment restoring the suit, I assume that that order was made under Order IX, Rule 9, Civil Procedure Code, and as appears from the terms of the order, the order of the 9 of May was set aside, and the suit was restored to the General List of Suits of this Court upon terms which were therein stated. The appeal is against the order of the 15 of July 1921, whereby the order of the 9 of May was set aside.

(2.) The learned Counsel for the respondent sited to us a case which was decided by my learned brother Mr. Justice Woodroffe and myself in March 1919, Johuri Mull Jhoon-jhoowtalla V/s. Ram Kumar Chowdhuri, Appeal against Original Decree No. 5 of 1919, (tin-reported), in which this very point arose, and in which we decided that the order was not a "judgment" within the meaning of Clause 15 of the Letters Patent: and, consequently, that there was no right of appeal. That case covers the present one. The learned, Counsel for the appellant, however, has drawn our attention to another case Padmabati Dabi V/s. Tulsimunjuri Dabi Appeal against Original; Decree No. 16 of 1918, (unreported),which was decided by my learned brother Mr. Justice Woodroffe and myself in June 1918. Thai dealt with an application under Order XXII, with regard to a case where the suit had abated. In that case my learned brother Mr. Justice Woodroffe delivered the judgment- and I agreed with him. The learned Counsel, for the appellant has argued that the reasoning upon which that judgment was based is inconsistent with the decision in the case of Johuri Mull Jhoonjhoonwalla V/s. Ram Kumar Chowdhuri, Appeal against Original. Decree No. 5 of 1919, (unreported), and he has asked us to refer the matter to a Fall Bench. Although the reasoning in that prior case of June 1918 may be to some extent inconsistent with the decision of the latter case which was decided in March 1919, my learned brother and I are of opinion that we should abide by the decision in Johuri Mull Jhoon-jhoonwalla V/s. Ram Kumar Chowdhuri, Appeal against Original Decree No. 5 of 1919, (unreported), which, as I have already said, is a direst decision upon the point, before us and, therefore, we hold that there is no appeal in this case, and the appeal must be dismissed with costs. Richardson, J.

(3.) I agree.