1. We are invited in this Rule either to set aside an orderby which the Court of first instance refused to restore an application forreversal of an execution sale, or to direct the lower Appellate Court to entertainan appeal against that order. The petitioner had applied to the Court of firstinstance under rule 90 of Order XXI of the Code of Civil Procedure of 1908 forreversal of an execution sale. The case had been set down for disposal on the23rd November 1912. On that day, he was present in Court and found the Judgeengaged in the trial of another suit. He left the Court and went on anotherbusiness. He returned after an hour and found that his case had been meanwhilecalled on and had been dismissed for non-prosecution, as his Pleader hadinformed the Court that he had received no instructions. He, therefore, appliedto have this order of dismissal set aside. The Court held on the 29th April1913 that no sufficient cause for non-appearance within the meaning of rule 9of Order IX of the Code had been established and refused to restore theapplication. The petitioner then appealed to the District Judge. When theappeal was taken up for disposal, a preliminary objection was taken that theappeal was incompetent. The District Judge gave effect to this contention andrejected the appeal. We are now invited either to set aside the order of theCourt of first instance or to direct the lower Appellate Court to entertain theappeal.

2. The first question for consideration is, whether theappeal preferred to the District Judge was competent. It has been argued thatthe order of dismissal was made under rule 8 of Order IX of the Code, that theapplication for restoration was made under rule 9 of Order IX and that consequentlyunder Order XLIII, rule 1, clause (e), an appeal lay to the District Judge. Inour opinion there is no foundation for the contention. Clause (e) of rule 1 ofOrder XLIII provides that an appeal shall lie from an order under rule 9 ofOrder IX rejecting an application (in a case open to appeal) for an order toset aside the dismissal of a suit. Here the petitioner did not prefer an appealagainst an order refusing to set aside the dismissal of a suit. What had beendismissed was his application under rule 90 of Order XXI for reversal of asale. The language of clause (e) of rule 1, Order XLIIII is identical with thatof clause 8 of section 588 of the Code of 1882. Under that Code, it had beenheld by this Court in the cases of Sujauddin v. Reazuddin 27 C. 414 and JungBahadur v. Mohadeo Prasad : 31 C. 207 : 8 C.W.N. 160 that noappeal lay against an order rejecting an application under section 102 forrevival of an application under section 311, which had been dismissed for non-appearanceof the judgment-debtor. The same view had been previously taken in the cases ofNingappa v. Gangawa 10 B. 433 and Raja v. Srinivasa 11 M. 319 and hassubsequently been adopted by the Allahabad High Court in the case of GhasitiBibi v. Abdul Samad 29 A. 596 : A.W.N. (1907) 186. We are of opinion that thenew Code has not, in this respect, effected any alteration in the law. It hasbeen argued, however, in support of the contrary view that a substantialalteration has been effected in section 647 of the Code of 1882, which has beenreplaced by section 141 of the Code of 1908. There is clearly no foundation forthis contention. Section 647 provided that the procedure therein prescribedshould be followed, as far as it could be made applicable, in all proceedingsin any Court of civil jurisdiction other than suits and appeals. To thissection was added an explanation in 1892, to the effect that the section doesnot apply to applications for execution of decrees, which are proceedings insuits. In section 141 of the Code of 1908, section 647 is reproduced in thefollowing form:--"The procedure provided in this Code in regard to suitsshall be followed, as far as it can be made applicable, in all proceedings inany Court of civil jurisdiction." The two alterations effected are, first,that the words "other than suits and appeals" are omitted, secondly,the explanation is omitted. This, however, has not effected any alteration inthe law, as is clear from the history of the legislation on the subject, asindicated by the decisions in the cases of Thakur Prasad v. Fakirulla 22 I.A.44 : 17 A. 106 : 5 M.L.J. 3 : 6 Sar. P.C.J. 526, Asim Mandal v. Raj Mohan Das11 Ind. Cas. 385 [LQ/CalHC/1910/562] : 13 C.L.J. 532 and Hari Charan v. Manmatha Nath: 19 Ind. Cas. 683 [LQ/CalHC/1913/217] : 41 C. 1 : 18 C.W.N. 343. In our opinion,it is clear that the appeal preferred to the District Judge was not competentand was rightly rejected.

3. We have next to deal with the contention that the orderof the Court of first instance was erroneous on the merits and should be setaside by this Court in the exercise of its revisional jurisdiction. The Courtof first instance accepted the principle laid down in the case of ManilalDhunji v. Gulam Husein 13 B. 12, which was subsequently followed in the case ofEsmail Ebrahim v. Jan Mahomed 10 Bom. L.R. 904. In this case it was laid downthat where a party has not been taken unawares and where he was under nocompulsion to leave the Court, nor could assign any weighty cause for hisabsence, he took the risk of the case being called on in his absence and couldnot be said to have established sufficient cause for his absence within themeaning of the Code. Reliance, however, has been placed upon the cases ofSomayya v. Subbama 26 M. 599 and Lalta Prasad v. Ram Karan 14 Ind. Cas 187 [LQ/AllHC/1912/92] : 34A. 426 : 9 A.L.J. 666, in which an attempt was made to draw a distinctionbetween "sufficient cause" and "valid reason" fornon-appearance. We are not impressed by the distinction suggested. In anyevent, upon the facts of the case before us, it is manifest that the petitioneris not entitled to any consideration from the Court. He was present in Court.He left the Court of his own accord to attend to other business, and he assumedthat his own case would not be taken up during his absence. He did not eventake the precaution to instruct his Pleader. The result was that when the casewas called on during his absence, the Pleader intimated to the Court that hehad no instruction to proceed with the matter. A party who deliberately choosesto act in this way must take the consequence of his own conduct.

4. The result is that the rule is discharged with costs. Weassess the hearing fee at three gold mohurs.

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Charu Chandra Ghoshvs. Chandi Charan Roy Chowdhury(13.01.1914 - CALHC)