No appeal lies against an order dismissing a restoration petition.

( 1 ) THIS Revision Petition raises the question whether an appeal against an order dismissing a restoration petition is competent and allowed in law this Revision Petition is filed by the defendant in O. S. No. 106 of 1958 on the file of the Third Assistant Judge, City Civil Court, Hyderabad. This suit filed against him was dismissed for default on 15th April, 1958. Thereafter, LA. No. 185 of 1958 was filed on 2nd June, 1958 by the plaintiff (respondent herein) under Order 9, rule 9, Civil Procedure Code, to restore that suit. But it transpires that I. A. No. 185 of 1958 was itself dismissed on 27th November, 1958 for default. The rejection of this Interlocutory Application, which admittedly was filed under order 9, rule 9, was not appealed against. The plaintiff thereafter chose to file la. No 76 of 1959 purporting to be under Order 9 rule 9, and section 151, Civil procedure Code. This was allowed on 26th February, 1959. The effect has been that LA. No. 185 of 1958 Was reinstated. But when again LA. No. 185 of 1958 stood posted to 1st April, 1959, it had to be dismissed for default of the plaintiff. Thus, in respect of the restoration petition, the same position as it obtained before the filing of LA. No. 76 of 1959 re-appeared. Therefore, the plaintiff filed LA. No. 451 of 1959, this time purporting to be only under section 151, Civil Procedure code. But the prayer in this petition consisted only to restore LA. No. 76 of 1959. It may be pointed out that such a prayer for resuscitating LA. No. 76 of 1959 is wholly unsustainable as that petition was already allowed and cannot be brought to life by any process of law. While matters stood thus, the plaintiff allowed LA. No. 451 of 1959 to be dismissed for default. He resorted to the method of filing another petition LA. No. 909 of 1959 for resuscitating LA. No. 451 of 1959. This again purports to be under Order 9, rule 9, Civil Procedure Code and section 151. This petition was, however, allowed on 10th February, 1960. The plaintiff thus achieved the result of keeping alive LA. No. 451 of 1959. Therefore LA. No. 451 of 1959 was heard by the trial Court on 17th Februuary, 1960 which passed the following order :"re opened suo motu under section 151, Civil Procedure Code, as there are apparent errors on the face of the record regarding the prayer in this petition. The prayer is to restore I. A. No. 76 of 1959. But it is seen from the old records that i. A. No. 76 of 1959 has already been allowed on 26th February, 1959 and that it was not dismissed. Hence the prayer in this petition is out of place and not in consonance with the existing state of things. Counsel for the petitioner states that he inadvertently filed this petition. In the circumstances, this petition is dismissed as infructuous. "aggrieved by this order, the plaintiff (respondent herein) filed C. M. A. No. 6 of 1960 before the Additional Chief Judge, City Civil Court, Hyderabad. The lower Court allowed this appeal and remanded the matter for fresh disposal after giving an opportunity to the appellant therein (plaintiff) to amend the petition in I. A. No. 451 of 1959 so as to substitute I. A. No. 185 of 1958 for LA. No. 76 of 1959. It also enjoined upon the plaintiff to pay Rs. 25 to the defendant as a pre-requisite before effecting this order. It is stated that this sum of Rs. 25 has been deposited by the plaintiff into Court. The defendant felt aggrieved with this order and therefore preferred this revision petition.

( 2 ) THE important question for consideration is whether the lower Court had the jurisdiction to entertain C. M. A. No. 6 of 1960. Before answering this question thus posed it is necessary first of all to state to what extent the Civil Procedure Code has sanctioned the procedure in respect of filing of applications for restoration of a dismissed suit, for setting aside an ex parte decree and as to when orders falling under these two categories are appealable. Order 9, rule 8, details the circumstances

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