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Title Suit No. 22 of 1980 was instituted by the opposite party No. 1 against the petitioners being the defendants in the said suit for specific performance of a contract. The said suit was decreed ex pane and the balance of the consideration money was deposited by the plaintiffs in the said suit in court within two months from the date of the decree and the said decree was put in execution in Title Execution Case No. 23 of 1980 for obtaining possession of the premises in question, The deed of conveyance was made, executed and registered in January, 1981. The defendants viz. the petitioners in this revisional application made an application under Order 9, Rule 13, read with S, 151 of the Civil P.C. for recalling the said ex parte decree. On such application. Misc. Case No. 4 of 1981 was started. The said Misc, Case was also dismissed for default on 24th Sept., 1981 and on Nov. 21, 1981, an application under Order 9, Rule 4, read with Section 141 of the Civil P.C. and also under Section 5 of the Limitation Act was made by the defendant petitioners for recalling the said order of dismissal dt. 24th Sept., 1981 passed in Misc. Case No. 4 of 1981. On such application, Misc. Case No. 55 of 1981 was started. The learned Munsif dismissed the said application for recalling the order of dismissal of Misc. Case No. 4 of 1981 for default on the finding that the said application for restoration under Order 9, Rule 4 read with Section 141 of the Civil P.C. was barred by limitation and the petitioners failed to prove any sufficient cause for which the delay should be condoned in presenting the application beyond the period of limitation.

4. At the hearing of the revisional application before the Division Bench of this Court, it was contended on behalf of the petitioners that the said application under Order 9, Rule 4 read with Section 141 of the Civil P.C. was not barred by limitation but such application could be presented under the residuary article of the Limitation Act viz. Art. 137 but by way of abundant caution a prayer for condonation of delay was made by the petitioner. It was also contended on behalf of the petitioners that when a Misc. Case arising out of an application under Order 9, Rule 13 of the Civil P.C. is dismissed for default, an application under Order 9, Rule 4, read with Section 141 of the Civil P.C. is maintainable and the learned Subordinate Judge should have considered the said application for restoration on merits and should have disposed of the same on such consideration. It was, however, contended on behalf of the opposite parties that when the Misc. Case arising out of an application under Order 9. Rule 13 of the Civil P.C. is dismissed for default, no further application under O, 9. Rule 4 is maintainable and Section 141 of the Civil P.C. is not attracted because Section 141 of the Civil P.C. attracts only provisions relating to procedural matters in a civil proceeding but does not apply to any substantive right. The Division Bench has noted that judicial decisions on the point as to whether or not an application under Order 9, Rule 4, read with Section 141 of the Civil P.C. is maintainable against an order dismissing an application under Order 9, are not uniform and contradictory views have been taken by law courts. The Division Bench has further noted that two Bench decisions of this Court have supported the view that an application under Order 9. Rule 9 is maintainable for restoration of an application under Order 9. Rule 9 or 13 if such application is itself dismissed for default, but such decisions have not taken into consideration the question as to whether or not provisions of Order 9, Rules 4. 9 or 13 of the Code relate to procedure or substantive right. The Division Bench was of the view that the period of limitation for making an application under Order 9. Rule 3 or 13 for restoration of an application made under Order 9 dismissed for default requires a decision and such question is of importance. Hence, reference to a larger Bench was made by the Division Bench on the aforesaid two points and this Special Bench has been constituted by the Chief Justice for considering the aforesaid points referred to the larger Bench.

10. After considering the respective contentions made on behalf of the parties, it appears to us that the Civil P.C. has got two parts which may be termed as (a) "body of the Code" and (b) the "rules". Mr. Bhattacharya, in our view, is justified in contending that the body of the Code is somewhat inflexible inasmuch as the csame cannot be altered except by amendment by the Legislature but the rules concerning with the details and machinery for implementing the various provisions of the Code, require greater flexibility and necessarily they should be easily altered. Precisely for the said purpose, the High Courts have been empowered under Section 122 to bring suitable amendments to various rules under the orders contained in the Civil P.C. Such orders and rules basically relate the procedural matters and they get sustenance from the sections of the Civil P. C. In our view, Mr. Bhattacharya has reasonably contended that while the section in the Civil P.C. creates jurisdiction, the rules indicate the mode in which such jurisdiction is to be exercised and the rules provide for the procedure for implementation of substantive rights created under various sections of the Code. It however appears to us that the rules under various orders of the Civil P.C. are not absolutely procedural but they also dealt with substantive rights. For example we may refer to the provisions of Order 21 of the Code. Various rules under Order 21 indicate substantive rights given to the parties to the suit and also strangers opposing the execution of the decree. It. however, appears to us that the 'proceedings' referred to in Section 141 of the Civil P.C. are not confined to only original proceedings. The Supreme Court in Ramchandra's case has indicated that "proceedings" under Section 141 are of wider amplitude. It also appears to us that the conflict as to whether or not a proceeding under Order 9 will be miscellaneous proceeding as contemplated in Section 141 of the Civil P.C. has now been set at rest by the Amendment Act of 1976. The law courts entertained different views as to whether or not a proceeding initiated on an application made under Order 9 can be treated as a miscellaneous proceeding attracting Section 141 C.P.C or it will be a case of substantive right outside the purview of Section 141. In order to obviate the conflicts in the decisions of various High Courts, an explanation has been added to Section 141 of the Civil P.C. by the Amendment Act of 1976 and within the expression "proceedings", the proceedings under Order 9 have been specifically included. For such inclusive definition, it is immaterial whether the proceedings initiated on the basis of an application under Order 9 partakes the character of a substantive right or procedural matter. Whatever may be the nature of the proceedings initiated under Order 9 of the Civil P.C., such proceedings are to be treated as miscellaneous proceedings within the meaning of Section 141 of the Civil P.C. as amended. In our view, therefore, the application for restoration of a Misc. Case arising out of an application under Rule 4. 9 or 13 of Order 9 for restoration of the Misc. case if such Misc. case itself is dismissed for default, is maintainable under Order 9 read with Section 141 of the Civil P.C. and the first question referred to the Special Bench is therefore answered in the affirmative.

13. If may be noted in this connection that Mr. Mitter has strenuously contended that in the facts and circumstances of the case, it is quite evident that the Misc. case was allowed to be dismissed for default without any reasonable cause and even if such application under Order 9 read with Section 141 of the Code is maintainable and even if the period of limitation for making such application is governed by Art. 137 of the Limitation Acf, the petitioners having failed to make out any case for restoration of the said Misc. case by showing that for any sufficient cause they had been prevented from appearing at the hearing of the said Misc. case since dismissed for default, the application for restoration of the Misc. case should have been dismissed even on merits and this revisional application, therefore, should be dismissed in any event. Mr. Mitter has also submitted that the Special Bench is also a Special Division Bench and since the revisional application is before this Bench, the Special Bench should not only answer the questions referred to it but should also dispose of the revisional application on merits in order to shorten the course of litigation. Although there is some force in the contention of Mr. M itter, but we refrain from considering the merits of the case since the hearing was confined to the points referred to this Bench and the learned counsel for the petitioner has not advanced his arguments in support of the case for restoration on merits. We, therefore, send the revisional application before the appropriate Division Bench for disposing of the same on merits. It is reasonably expected that the Division Bench will give utmost priority to this revisional application pending for a long time and dispose of the case at the earliest. In the facts of the case, there will be no order as to costs.