1. This application arises under the following circumstances: A suit as brought on a mortgage. The defendants pleaded (inter alia) part payment of ??? amount below Rs. 10,000. The Court ??? first instance held that the part payment had not been proved. If it had been held otherwise the claim of the plaintiffs would have been reduced by a ??? amount for principal and interest, the defendants preferred an appeal to the High Court: On the case being called ??? the learned gentleman who appeared ??? the case stated that they had no instructions to proceed with the appeal ??? the sum was accordingly dismissed ??? 27th January 1916. On 25th March ??? Counsel, not the same gentleman ??? had appeared on the previous ??? applied for restoration under the provisions of O. 41, R. 19, of the Code. This application was grounded on an affidavit. The bench which heard this application considered that no sufficient cause had been shown for the non-appearance of the appellant at the hearing, and accordingly summarily rejected the application without issuing notice to the other side. The order of the Court was dated 29th April 1916.
2. The present application is one for leave to appeal to His Majesty in Council from this order rejecting the application for restoration, It is argued that an appeal lies as of right to His Majesty in Council under the provisions of S. 109(a) or (b). S. 109(a) provides for an appeal from any decree or final order passed “on appeal” by a High Court. It is quite clear that the order rejecting the application for restoration was not a decree or final order passed on appeal.” Cl. (b) provides for an appeal from any decree or final order passed by a High Court in exercise of original civil jurisdiction. It is equally clear that the order rejecting the application for restoration was not an order passed in the exercise of the “orginal civil jurisdiction” of this Court. If an appeal lay and it were necessary that we should certify that the case was “otherwise” a fit one for appeal to His Majesty in Council, we would be unable to give the necessary certificate. We reject the application with costs.
V.B/R.K
3. Application rejected.