SADAYA PADAYACHI Vs. CHINNASWAMI NAIDU

JUDGEMENT

(1.) WE think that the preliminary objection taken by the respondent that no appeal will lie in this case must prevail. An ex parte decree was passed against the appellants and they applied under Order 9, Rule 13, Civil Procedure Code, to have it set aside. This application was dismissed for their default. They then applied to have that order set aside and their application restored and this has been dismissed upon the merits. It is from this Order that the appeal is preferred, and it is urged that it will lie under Order 43, Rule (1)(c), Civil Procedure Code, by force of the application of Section 141 of the Code. That section provides that: The procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of Civil Jurisdiction.

(2.) AND it has been invoked as sufficient warrant for the view held in two Madras cases, Venkatanarasimha Rao V/s. Suryanaryana A.I.R. 1926 Mad. 325 and Salar Beg Saheb v. Karumanchi Kotayya that the provisions of Order 9, Rule 9, Civil Procedure Code, will apply to applications made under the same rule as well as to applications to set aside a dismissal of a suit. That however is not to say that the same section will avail to confer a right of appeal. It deals only with procedure, whereas a right of appeal is a substantive right. Under Section 104 of the Code such a right is enjoyed only in respect of orders specified in that Section or in Order 43, Rule 1. There is ample authority for this position, see Chandar Sahai V/s. Durga Prasad (1924) I.L.R. 46 All. 538, Sharif Husain V/s. Haidar Hussin A.I.R. 1922 All. 337 and Hara Kumar Mitter V/s. Murari Mohan Bose (1922) 69 I.C. 1003. The case in Jagdish Narain Prashad Singh V/s. Harbans Narain Singh (1917) 2 P.L.J. 720 is, we think, a decision in the same sense though the head-note is clearly wrong and the judgment is not very clearly expressed. The analogous question whether an appeal will lie against an application to set aside a dismissal not of a suit but of another application under the Code has been decided in Jung Bahadur v. Mahadeo Prosad (1903) I.L.R. 31 Cal. 207, which related to the old Code and dealt with an application under what is now Order 21, Rule 90.