DARBARI LAL Vs. LACHMI NARAIN

JUDGEMENT

(1.) IN this case the suit had been dismissed under the provisions of Order IX, Rule 2, of the Code of Civil Procedure. An appeal against this order of dismissal was entertained by the District Judge and resulted in an order directing the court of first instance to re-admit the suit on to its pending file and to dispose of it on the merits. Presumably the District Judge considered himself to be acting under Order XLI, Rule 23, of the Code of Civil Procedure. The matter has been brought before us on appeal from the District Judge s order of remand. We think that no appeal lay to the District Judge. Authority for this proposition is to be found in Lucky Churn Chowdhry v. Budurr-un-niasa (1882) I.L.R. 9 Calc. 627 and in Parbati v. Toolsi Kapri (1913) 20 INdian Cases 1. It seems to be clear that the dismissal of the suit by the first court was a form of dismissal for default, and therefore excluded from the definition of the word "decree" in the present Code of Civil Procedure. The plaintiffs remedy was under Order IX, Rule 4, of the present Code and presumably, to some extent at any rate, it is still open to him. This appeal must prevail. We set aside the order of the District Judge and restore that of the court of first instance. The appellant is entitled to his costs in this and in the lower appellate court.