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1. This matter comes up before us on a reference by our learned brother Tare J. for decision on the question as to the period of limitation for an application for restoration of an application under Order 9 Rule 9 C. P. C. which itself has been dismissed in default.

2. The petitioner Pooranchand's suit was dismissed for default in appearance under Order 9 Rule 8 C. P. C. He then filed an application under Rule 9 for restoration. This application for restoration was itself dismissed for default of appearance on 3rd September 1959. Thereupon on 30th November 1959 the petitioner made an application for setting aside the dismissal of his application for restoration. This application was rejected by the trial Court on the ground of limitation relying on Pitambar Lal v. Dodee Singh, ILR 46 All 319: (AIR 1924 All 503). In the Allahabad case it was held that an application for setting aside the dismissal in default of an application for restoration under Order 9 Rule 9 could itself be treated as an application for restoration of the suit and would be governed by Article 163 of the Limitation Act.

The learned Judges based this conclusion on the reasoning that Section 104(1)(i) and Order 43 Rule 1 C. P. C. did not provide for an appeal against an order of dismissal for default of an application for restoration of a suit under Order 9 Rule 9; that the right of appeal being a substantive right could not be inferred by the application of Section 141 which only made the procedure in the Code applicable, in so far as it could be, in all proceedings in any court of civil jurisdiction and did not give any substantive right; and that, therefore, an under of dismissal for default of an application for restoration of a suit under Order 9 Rule 9 was not appealable under Order 43 Rule 1(c). On the same reasoning the learned Judges treating the remedy under Order 9 Rule 9 as a substantive one held that it was not available by resorting to Section 141 C. P. C., for setting aside the dismissal in default of an application for restoration of a suit under Order 9 Rule 9. This decision was followed by a Single Judge of the Nagpur High Court in Prem Shankar v. Rampyarelal, ILR (1944) Nag 558: (AIR 1944 Nag 317).

5. We entirely agree with the view expressed in 28 Nag LR 83: (AIR 1932 Nag 101) (supra). Order 9 in terms applies only to suits. The remedy under Order 9 Rule 9 C. P. C. is not a matter of procedure (See Sitaram v. Bapurao, 1953 Nag LJ 144: (AIR 1953 Nap 153). The rule gives a substantive right of applying for restoration of a suit dismissed for default and this right cannot be conferred by Section 141 when it is made applicable to proceedings initiated on an application for setting aside the dismissal in default of an application for restoration of a suit under Order 9 Rule 9 C. P. C. Section 141 deals only with procedure and not with any substantive right. It docs no more than provide the procedure to be adopted by courts of civil jurisdiction in dealing with matters before them. It does not provide that the Code is to be applied in its entirety to such proceedings so as to confer the right of appeal or any other substantive right in those proceedings. Order 9 Rule 9 cannot, therefore, be invoked for setting aside the dismissal in default of an application for restoration of a suit under that rule. On the same principle an order dismissing in default an application for restoration of a suit under Order 9 Rule 9 is not open to appeal under Order 43 Rule 1(c). The dismissal of such an application for default is in the exercise of the inherent powers of the court. That being so, the dismissal can be set aside by the exercise of the same inherent powers.

6. Shri Verma, learned counsel appearing for the opponent, said that in 28 Nag LR 83 :(AIR 1932 Nag 101), (supra) a doubt was expressed as to whether an application for setting aside the dismissal for default of an application to restore a suit under Order 9 Rule 9 C.P.C. was maintainable under Section 151 C. P. C. We do not find any such doubt expressed in the opinion delivered by the learned Judges in Brijmohan's case, 28 Nag LR 83 :(AIR 1932 Nag 101) (supra). The doubt that was expressed by Niyogi, A. J. C., was on the question whether an application to set aside the dismissal of an application for restoration of a suit dismissed for default could be regarded as an 'original matter' to which Section 141 C. P. C. could be applied. But the learned Judges were emphatic on the point that even if Section 141 were to be made applicable to cases of applications to set aside the dismissal of an application for restoration of a suit dismissed in default, that would not give the substantive right of making an application for restoration under Order 9 Rule 9, and that in the absence of any express provision in the Code the right to make such applications is implied in Section 151.