Authored By : Atkinson, Chapman

Atkinson, J.

1. This appeal comes before us at the instance of the plaintiffs. It appears that the plaintiffs instituted a suit on the 27th June 1914. Various applications were made by the plaintiffs for time pending the date appointed for the final disposal of the suit. The suit was ripe for hearing on the 22nd April 1915. Antecedent to this date the plaintiffs had obtained time on four separate applications specified in orders 14, 15, 16 and 17. On the date appointed for final disposal of the suit, the plaintiffs were not present. Their names were called out several times within the precincts of the Court, and the learned Vakil who appeared on behalf of the appellants stated to the Court that he had no instructions. The Vakils for the defendants were in attendance before the Court and the learned Subordinate Judge dismissed the suit for default of appearance. From that order there was no appeal. On the 20th August 1915, the plaintiffs filed a petition before the Subordinate Judge seeking to set aside the order of dismissal of the suit and praying for the restoration of the case. An application by way of petition for time for the hearing of the aforesaid petition came before the learned Subordinate Judge on the 8th January 1916, and the learned Vakil for the plaintiffs attended before the Court and stated that he had no instructions.

2. The defendants were duly represented before the Court and accordingly the application was dismissed with costs to the opposite party. On the 24th July 1916 the learned Subordinate Judge dealt with the application which had been made to him under Order IX, rule 9, of the Civil Procedure Code. He set out fully the history of the case and the facts that had been established before him and he declined to grant the prayer set forth in the petition, and from that order this appeal has been taken by the plaintiffs.

3. It is argued by Mr. Das who appears on behalf of the defendants that no appeal lies, inasmuch as this is not an order dismissing a suit within the meaning of Order XLIII, rule 1, clause (c), of the Civil Procedure Code; it is an order merely interlocutory in character and not an order dismissing a suit. Various authorities have been relied upon in support of that proposition, namely, the cases cited as Jang Bahadur v. Mohadeo Prosad 31 C. 207 : 8 C.W.N. 160, Ningappa v. Gangawa 10 B. 433 : 5 Ind. Dec. (N.S.) 676, Ghasiti Bibi v. Abdul Samad 29 A. 596 A.W.N. (1907) 186, Charu Chandra Ghosh v. Chandi Charan Roy 27 Ind. Cas. 492 : 19 C.W.N. 25. All these cases appear directly in point; and in addition they are fortified by the decision of two members of this Court to the like effect reported as Ram Nandan Prasad v. Ramchandra Prosad 42 Ind. Cas. 613 : 2 P.L.W. 172.

4. Mr. Das refers us to section 141 of the Code of Civil Procedure, which, enacts that the procedure provided in the 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. But Mr. Das contends that that section does not confer a substantive right not otherwise given by the Code. Much stress is laid upon the fact that in section 104 of the Code of Civil Procedure it is expressly declared what orders shall be appealable and no others. Now the order made in this matter under Order IX, rule 9, is not within the category of orders against which an appeal lies as provided by section 104 of the Civil Procedure Code. No appeal would lie under section 141 of the Code of Civil Procedure, having regard to the line of authority which has laid down what is the proper interpretation of Order XLIII, rule 1, clause (c), which applies to this case, and inasmuch as the order in this case was not an order dismissing a suit, but merely an order dismissing a petition to restore the suit, no appeal lies. We, therefore, on this ground dismiss this appeal with costs. We allow one set of costs measured at three gold mohurs to be paid to the clients represented by Mr. Das.

Chapman, J.

5. I agree.