UDOY CHAND PANNALAL Vs. KHETSIDAS TILOKCHAND

JUDGEMENT

(1.) This is an appeal from the judgment of my learned brother, Mr. Justice Buckland, which was delivered on the 21 of December 1923.

(2.) The judgment was delivered in respect of a notice which was issued by the Assistant Registrar of this Court on the 13 of December 1923 and addressed to the attorney for the plaintiff in the following terms: Under Rule 36, Chapter X of the Rules of the High Court, Original Side, 1914, notice is hereby given that the above suit will be set down in a list to be taken in Chambers on Wednesday, the 19 day of December instant, before the Hon ble Mr. Justice Buckland and will be dismissed for default unless, on the day, good cause is shown to the contrary, or be otherwise dealt with as the Judge may think proper That was a notice which was in terms of Rule 36, Chapter X of the Original Side High Court Rules, which in its present form runs as follows: "Suits and proceedings which have not appeared in the Prospective List within six months from the date of institution, may be placed before a Judge in Chambers, on notice to the parties or their attorneys, to be dismissed for default unless good cause is shown to the contrary or be otherwise dealt with as the Judge may think; proper." The learned Judge dismissed the suit for want of prosecution and made no order as to costs of the suit.

(3.) The first point, with which it is necessary for me to deal, was taken by the learned Counsel for the defendant respondent, namely, that there was no right of appeal to this Court from the decision of my learned brother. His main argument was based upon Section 104 of the Civil Procedure Code which provides: "An appeal shall lie from the following orders, and, save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders." The learned Counsel pointed out that neither Section 104 nor Order XLIII, Rule 1 provided for an appeal from the order of a learned Judge dismissing a suit for want of prosecution.