Chatterji, J.These revisions arise out of applications under Order 9, Rule 13, Civil P.C. to set aside certain ex parte decrees passed against the petitioner. On the date of hearing of the applications the applicants filed petitions for time, which were rejected by the learned Subordinate Judge. After this, their pleaders retired from the case and the original applications were dismissed for default in the presence of the plaintiff opposite party. The learned District Judge in appeal considered that no appeal lay against the orders in question and in that view he dismissed the appeals before him.

2. In my opinion, the order of the District Judge cannot be supported. Order 43, Rule 1(d), Civil P.C. specifically provides for an appeal against an order under Order 9, Rule 13 rejecting an application to set aside a decree passed ex parte.

3. It is, however, urged on behalf of the respondents that the provision for an appeal is limited only to the case where an application under Order 9, Rule 13 is dismissed on the merits. There is no reason to take such a narrow view of the clause and to read into it words which are non-existent. The present CPC had made a departure in the matter of appeal in suits dismissed for default, because the definition of the word "decree" exempts such dismissal of suits from its operation. If the legislature intended to lay down that no appeal should lie from an order of dismissal of a re-hearing petition for default in the presence of the opposite-party, suitable provision would have been made in the Code. I am supported in this view by various decisions of the Calcutta High Court: Kumud Kumar Bose v. Hari Mohan Samadar [1915] 21 Cri.L.J. 28 and Pahari Pramanik v. Surat Sundari Debya [1917] 37 I.C. 835 and also by a decision of this Court, namely the case of Mt. Bodhia v. Ram Chandra AIR 1927 Pat. 240 .

4. Reference was made on behalf of the respondent to the cases of Bajit Lal v. Rameshwar Prasad Singh AIR 1928 Pat. 335 and Jagdish Narain Prasad Singh v. Haribans Narain Singh [1918] 2 Pat. L.J.720. The last mentioned case arose out of an application to set aside an order dismissing the plaintiffs application for the restoration of a suit dismissed for default. It is settled law that an application like that cannot be one under Order 9, Rule 9 and as such the order dismissing such an application cannot fall within the purview of Order 43, Rule 1, Clause (c), Civil P.C. The case of Jagdish Narain [1918] 2 Pat. L.J. 720 is therefore no authority for the position taken up by the learned advocate for the respondent. The other case relies upon Jagdish Narains case [1918] 2 Pat. L.J. 720, but in effect lays down a different rule. I do not agree with that decision, but as the case dealt with another clause of the rule no reference to the Pull Bench is necessary.

5. I would allow the applications, set aside the order of the District Judge and remand the cases for the re-hearing of the appeals by him. The petitioners shall get one set of costs assessed at one gold mohur.

Ross, J.

I agree.