1. This is a petition for revision of an order of a learned Subordinate Judge to the effect that no appeal lay to his Court.
2. An application for pre-emption under Section 26-F of the Ben. Ten. Act was dismissed for default. An application was then made for setting aside the dismissal and restoration of the application. That application was dismissed on contest and the unsuccessful applicant appealed to the Court of the learned Subordinate Judge. The learned Subordinate Judge held that no appeal lay and dismissed the appeal.
3. It has been argued in the first place that this was an order passed under S. 26F and was therefore appealable by reason of sub-s. (10) of that section. But, in my view, this is not an order under S. 26F. I have held that an order of dismissal for default would be an order under that section, but this was an order passed in an entirely different proceeding. The application under S. 26F had been dismissed for default and the applicant filed a application for restoration. Section 26-F makes no provision for restoration, but the provisions for setting aside ex parte orders and restoring applications contained in the Code are made applicable to applications under S. 26F by reason of the provisions of Section 143 of the Ben. Ten. Act. The dismissal of this application to set aside the ex parte dismissal was a proceeding not under S. 26F but under the provisions of O. 9, R. 9 of the CPC. That being so, no appeal could lie in this case by reason of sub-S. (10) of Section 26-F of the Ben. Ten. Act. It was urged however that an appeal would lie from this order made under O. 9, R. 9 by reason of Section 141 of the CPC and O. 43, R. 1.
4. Order 9, R. 9 in terms is confined to suits and on the face of it the order would have no application to a proceeding under Section 26-F of the Ben. Ten. Act as such proceeding is not a suit. Section 141 of the Code however provides that the procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in a Court of civil jurisdiction. That being so, the procedure laid down by O. 9, R. 9 though in terms applicable only to suits, is also applicable to applications in a civil Court by reason of S. 141.
5. It is then argued that if O. 9, R. 9 applies to applications there is no reason at all why an appeal would not lie because O. 43, R. 1(c) provides that an appeal shall lie from an order under O. 9, R. 9 rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit.
6. The argument is that by reason of S. 141, O. 43, R. 1 is made applicable to applications as well as suits.
7. It is to be observed that S. 141 speaks of procedure. What is made applicable to of all proceedings in a Court of civil, jurisdiction is the procedure provided in the Code with regard to suits. Now, a right of appeal is admittedly a substantive right and not a procedural right. Section 141 does not deal with substantive rights and therefore Courts have held that though O. 9, R. 9 is made applicable to applications other than suits no appeal would lie from a dismissal of such an application under O. 43, R. 1.
8. This has been clearly laid down in a comparatively recent case in 58 Mad. 814.1 In that case an application under O. 9, R. 13 to have an ex parte decree set aside was dismissed for default and an application made thereafter to have that order set aside and the original application restored was dismissed upon the merits. It was held that no appeal lay from the order made on the subsequent application. The same view was taken by a Bench of this Court in 69 I.C 10032 the head-note of which reads as follows:
“Where a suit is dismissed in default and an application to set aside the owlet is also dismissed in default, an order made on a subsequent application refusing to set aside the dismissal of the previous application, is not an order refusing to set aside the dismissal of a suit in default within the meaning of cl. (c) of R. 1 of O. 43 of the CPC, the suit having come to an end with the order dismissing it for default. Such an order is not open to appeal.”
9. It was further held that Section 141 of the CPC, cannot operate to give an appeal from an order not otherwise appealable under O. 43 of the Code. A similar view has been taken in a number of cases namely, 46 ALL. 538;3 A.I.R 1922 ALL. 3374 and 2 Pat. L.J 720.5
10. It appears to me that these cases compel me to hold that there was no appeal against this order and that being so, the learned Subordinate Judge rightly dismissed the appeal.
11. The petition therefore fails and is dismissed. The rule is discharged with costs.
D.H
12. Rule discharged.