Hara Kumar Mitter v. Murari Mohan Bose And Others Opposite Party.

Richardson, J.:— In my opinion, this rule should be discharged on the ground that there is no substance in the contention advanced on the petitioner's behalf.

2. The petitioner brought a suit in ejectment against the opposite parties. The petitioner not appearing, when the suit was called on for hearing, the suit was dismissed under Rule 8 of Order IX. The petitioner then applied under Rule 9 of the same order for an order setting aside the dismissal.

3. The petitioner again failed to appear at the proper time and application was in its turn dismissed for default. The petitioner then applied to have the dismissal of the previous application set aside. The second application was heard and refused by the learned Munsif in the Court of first instance by an order dated 5th February, 1921. From that order the petitioner appealed.

4. The appeal was heard by a learned Subordinate Judge who dismissed it on the ground that no appeal lay. The petitioner then obtained this rule calling upon the opponents to show cause why the learned Subordinate Judge's order should not be set aside on the ground he had erred in holding that appeal was incompetent.

5. In my opinion, the learned Subordinate Judge was quite right in the view which he took. Clause (c) of Rule 1 of Order XLIII allows an appeal from an order Under Rule 9 of Order IX rejecting an application in a case open to appeal for an order to set aside the dismissal of a suit. The clause applies therefore only in cases when a “suit” has been dismissed. It is clear that while the order dismissing the petitioner's first application remained in force no fresh application could be made to set aside the dismissal of the suit. It is also clear that the suit came to an end with the order dismissing it for default and the first application, namely the application to set aside the dismissal of the suit was not itself a suit. It follows that the order dismissing the second application was not an order refusing to set aside dismissal of a suit within the meaning of Clause (c) of R. 1 of O. XLIII.

6. This reasoning is similar to that adopted in Charu Chandra Ghosh v. Chandi Charan Roy Chowdhury(1). It is at least extremely doubtful whether regard being had to the observations of the Privy Council in the case there cited of Thakur Prosad v. Fakirulla(2), S. 141 of the Code applies at all to proceedings under Rule 9 of Order XI, but even if the contrary be assumed, Section 141 cannot operate to give an appeal from an order not otherwise appeal-able under Order XLIII.

7. The rule must in my opinion be discharged with costs, hearing fee, two gold mohur.

Sanderson, C.J:— I agree.

8. Rule discharged.