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On the day on which an appeal (Miscellaneous (First) Appeal No. 161 of 1959) was filed in the High Court, namely, on 30-11-1959, the plaintiff non-applicant had also moved the trial Court for restoration to file the application for restoration dismissed in default of his appearance on 3-9-1959. The application was entitled as one made under Section 151 read with Rule 9 of Order 9 of the Code of Civil Procedure. In a note appended to the application it was stated that in case the application was not maintainable as filed, it may be treated as an application for review of the order dated 3-9-1959. This application, which was registered as Miscellaneous Judicial Case No. 31 of 1960, also came to be dismissed for default on 21-12- 1959, though the Court had noted in the order-sheet that it also appeared to be barred by time as the order challenged was passed on 3-9-1959 and the application was made on 30-11-1959, On 26-12-1959 the plaintiff non-applicant filed an application for restoration to file of his application dated 30-11-1959 dismissed for default on 21-12-1959. This application was not separately registered; and on 1-1-1960 the trial Court restored to file the application dated 30-11-1959 (which had been filed under Section 151 read with Rule 9 of Order 9 of the Code of Civil Procedure for restoring to file the application for restoration dismissed in default of plaintiffs appearance on 3-9-1959).

In the result, he remanded the case to the trial Court for proceeding with the enquiry relating to the application for restoration of the suit filed on 22-4-1959.

It may, however, be noted that neither the fact that appeals had been filed in the High Court against the dismissal of the application for restoration of the suit dated 3-9-1959 and that these appeals had been dismissed by it nor the objection raised by the defendant-applicant before the trial Court on 14-9-1960 was brought to the notice of the learned Judge dealing with the civil revision.

13. In the course of the order, the Division Bench, after approving the decision in Brijmohan's case, 28 Nag LR 83 = (AIR 1932 Nag 101) (supra) said:

"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. It seems to us unnecessary to examine some decisions in which it has been held that an appeal lies under Order 43 Rule 1(c) from an order rejecting for default an application under Rule 9, (see Doma Choudhary v. Ram Naresh Lal, AIR 1959 Pat 121 and cases noted in Chituley's Civil Procedure Code, Volume II, under note (2) to Order 9 (General.)) These decisions and others making Order 9, Rule 9 applicable for setting aside an order rejecting for default an application for restoration of a suit under Order 9, 11, 9 C. P. C. overlook the position that when an appeal is preferred against an order rejecting for default an application under Rule 9 for the restoration of a suit the appeal is not against the order to set aside the dismissal or a suit within the meaning of Order 43 Rule 1 (c), that Section 141 deals with procedure alone and not with any substantive rights, and that the remedy under Order 9, Rule 9 Civil Procedure Code is not a matter of procedure but is a substantive right."

One stray observation with second sentence regarding the non-tenability of an appeal under Rule 1(c) of Order XLIII against an order dismissing in default an application for restoration of the suit dismissed for default did not arise out of the reference, nor were they necessary for the decision of the reference. A close scrutiny of the order shows that what the learned Judges really meant to lay down was that Rule 9 of Order IX could not be invoked for setting aside the dismissal in default of an application for restoration of a suit dismissed in default and that on the same principle an order dismissing in default an application for restoration of the application for restoration" of a suit under Order 9, Rule 9 was not open to appeal under Rule 1(c) of Order XLII. We are respectfully of opinion that there has been an inadvertent omission of the words which we have underlined above (here in * *) in the second sentence of the judgment aforesaid. The further observations that 'the dismissal of such an application for default is in the exercise of the inherent powers of the court' also then become intelligible because, as the application for setting aside the dismissal in default of the application for restoration of the suit was itself under the inherent powers of the court, its dismissal for default would also be under the inherent powers of the court; but if the observations were referable to an application for restoration of a suit under Rule 9 of Order 9 of the Code of Civil Procedure, it is a little difficult to understand how and why its dismissal for default would be under the inherent powers of the court and not under Rule 9 of Order 9 of the 'Code itself.