Doma Choudhary And Ors. vs Ram Naresh Lal And Ors. on 7 November, 1958
"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."