Niyogi, A.J.C:— The question referred to the Bench for determination is:
“Whether an appeal lies from an order rejecting an application to set aside the dismissal of an application for restoration of a suit dismissed in default.”
2. On this question there has been a divergence of opinion in this Court. Ia Faridbi v. Mohamad Amin(1), Drake Brockman, J.C, held that no appeal lies from an order rejecting an application to set aside the dismissal of an application for restoration of a suit dismissed in default.
3. In Kalicharan v. Ratansingh(2), Hallifax, A.J.C, took a contrary view and held that an appeal lies. In the last mentioned case no reference was made to the previously decided case reported in Faridbi v. Mohamad Amin. Hallifax, A.J.C, held that the right of appeal is only a matter of procedure and inasmuch as Section 141 of the CPC, provides that the procedure applicable to suits shall be followed in all proceedings in any Court of civil jurisdiction, the order refusing to set aside the dismissal of the application for restoration of a suit dismissed in default must be regarded as one passed under O. 9, R. 13 of the CPC. He arrived at this result by assuming that after the word ‘suit’ wherever it occurs in R. 9, O. 9, the following words must be read “or other proceeding to which this rule applies by virtue of S. 141” and by parity of reasoning the learned Additional Judicial Commissioner inferred that the same words must be added after the word “suit” in Cl. (c), R. 1, O. 43.
4. Having regard to the observations made by their Lordships of the Privy Council in Thahur Prasad v. Fakirullah(3), to the effect that the proceedings spoken of in S. 647 of the Code of 1882 which corresponds to S. 141 of the Code of 1908, include original matters in the nature of suits such as proceedings in probates, guardianship, and so forth, it is doubtful whether Section 141 of the CPC, would be applicable to cases of applications to set aside the dismissal of an application for restoration of a suit dismissed in default. In any case S. 141 cannot be interpreted as giving a substantive right to make such applications. In the absence of any express provision in the Code the right to make such applications is implied in Section 151 of the CPC. In Sarat Chandra Bose v. Bisweswar Mitra(4) it was held that an application in so far as it purported to be under O. 9, R. 9, was not competent, but that the provisions of Section 151 of the CPC, may be resorted to in order to do real and substantial justice. That is also the view of the Allahabad High Court: see Ganesh Prasad v. Bhagelu Ram(5). If therefore it is treated as an application made to invoke the inherent powers vested in the Court under Section 151 of the CPC, the order passed thereon must be regarded as having been passed under that section. The view expressed in Manikji v. Surajmal(6) and followed in Faridbi v. Mohamad Amin that S. 141 operates to give the same remedy in respect of an application as the one provided for in O. 9 in respect of a suit, does not appear to be sound. The correctness of the ruling reported in Manakji v. Surajmal was doubted by Hallifax, A.J.C, himself in Harlal v. Narayan(7). Even on the assumption that by virtue of S. 141 the procedure provided in O. 9 is applicable to the proceeding arising out of such an application as the present, the application itself not being one for setting aside the dismissal of a suit, the order cannot be treated as one passed under O. 9, R. 13. The addition of the words suggested by Hallifax, A.J.C, after the word “suit” in O. 9, R. 9 of the CPC, is obviously not the right method of interpretation.
5. Sections 96 and 104 are the only provisions which confer a right of appeal. It is only by virtue of S. 104(1)(i) that the orders made under rules specified in O. 43, R. 1, become appealable. S. 141(1) expressly lays down that an appeal shall lie from such orders and “from no other orders.” O. 43, R. 1(c) only speaks of an order rejecting an application for an order to set aside the dismissal of a suit. To give an extended interpretation to this provision by amplifying its import so as to cover cases which do not fall strictly within O. 9, would be contrary to the express terms of S. 104(1)(i). The right to appeal is not merely a matter of procedure but one of substance: it cannot arise by implication but only by virtue of an express enactment: see Rangoon Botatoung Co. Ld. v. The Collector, Rangoon(8). In Chandar Sahai v. Durga Prasad(9) and Bajit Lal Pathak v. Rameswar Singh(10) the same view was taken and it was held that no appeal lay.
6. My answer to the reference is therefore that no appeal lies.
Jackson, J.C:— I have had the advantage of reading the opinion of Niyogi, A.J.C, and I agree with him that no appeal lies.
7. The initial mistake, in my opinion, was made in Manakji v. Surajmal, in which it was held that if an application for setting aside a dismissal of a suit for default is itself dismissed for default an application for its reinstitution can be entertained under the provisions of S. 141, Act 5 of 1908. S. 141 deals with procedure only and the above decision amounts to holding that the aright to apply to set aside the dismissal for default of an application for setting aside the dismissal of a suit for default, as merely a matter of procedure. In Kalieharan v. Ratansingh, Hallifax, A.J.C, was correct in saying that the aright of appeal is no more and no less a matter of procedure than the right to apply for the setting aside of a dismissal in default; but where he erred, I think, was in not realizing that neither right is a matter of procedure, both rights being substantive rights, which can only be given by express enactment.
K.N/R.K
8. Reference answered.