Sanderson, C.J:— In this case a preliminary point has been taken that no appeal lies. On the 9th of May 1920, the plaintiff did not appear and the suit was dismissed for want of prosecution: and, on the 15th of July 1920, my learned brother Mr. Justice Greaves made an order, as he describes it in his judgment, restoring the suit. I assume that order was made under Order IX, r. 9, Civil Procedure Code, and as appears from the terms of the order, the order of the 9th of May was set aside, and the suit was restored to the General List of suits of this Court upon terms which were therein stated. The appeal is against the order of the 15th of July 1921, whereby the order of the 9th of May was set aside.
The learned counsel for the respondent cited to us a case which was decided by my learned brother Mr. Justice Woodroffe and myself in March 1919, Johuri Mall Jhoonjhoonwalla v. Ram Kumar Chowdhuri(1), in which this very point arose, and in which we decided that the order was not a “judgment” within the meaning of clause 15 of the Letters Patent: and, consequently, that there was no right of appeal. That case covers the present one. The learned counsel for the appellant, however, has drawn our attention to another case, Padmabati Dabi v. Talsimunjari Dabi(2), which was decided by my learned brother Mr. Justice Woodroffe and myself in June 1918. That dealt with an application under Order XXII, with regard to a case where the suit had abated. In that case my learned brother Mr. Justice Woodroffe delivered the judgment and I agreed with him. The learned counsel for the appellant has argued that the reasoning upon which that judgment was based is inconsistent with the decision in the case of Johuri Mull Jhoonjhoonwalla v. Ram Kumar Chowdhuri and he has asked us to refer the matter to a Full Bench. Although the reasoning in that prior case of June 1918 may be to some extent inconsistent with the decision of the latter case which was decided in March 1919, my learned brother and I are of opinion that we should abide by the decision in Jhoonjhoonwalla v. Ram Kumar Chowdhuri which, as I have already said, is a direct decision upon the point before us: and, therefore, we hold that there is no appeal in this case, and the appeal must be dismissed with costs.
Richardson, J.:— agreed.
N.G
Appeal dismissed.