The main legal point established in the judgment is that the provisions of Order 33 should be read in conjunction with other provisions of the CPC to bring about a harmonious result, and the dismissal of an application under Order 9, Rule 9 does not bar subsequent applications under Order 33, Rule 1.

( 1 ) THIS is an appeal by defendant-1 against the order dated 2-2-1985 passed by the Add. Civil Judge, Bangalore District. Bangalore, in O. S. 106/80, dismissing I. A. X. filed by defendant-1 under O. 33, R. 1. on the second occasion.

( 2 ) THE plaintiffs filed the suit O. S. 106/80 to recover about 30 lakhs and odd from the defendants. The defendant-1 filed I. A. VII making a counter claim of about a crore and 26 lakhs and he sought permission to make the counter claim as an indigent person. The said I. A. VII came to be dismissed for default on 1-10-1983. I. A. X was filed under O. 9, R. 9 to set aside the ex parte order of dismissing I. A. VII for default. He also filed second application I. A. X. under O. 33 R. 1 again to permit him to make a counter claim as an indigent person. The trial Court dismissed I. A. IX and it also dismissed I. A. X. on the ground that an order passed dismissing I. A. IX filed under O. 9, R. 9 would bar the subsequent petition. M. F. A. 1528/85 was filed against the dismissal of I. A. IX filed under O. 9, R. 9. But later on it was withdrawn. The present appeal is directed against the order dismissing I. A. X.

( 3 ) LEARNED Counsel Sri Rangavithalachar, drew my attention to Srikanta Subbaraje Urs v. S. P. Sundaraja Char, (1972) 1 Mys LJ 111. It is held in the said case as :"where a petition for permission to sue as a pauper is dismissed for default of appearance, Or. 33, R. 15, CPC does not bar a second petition, as the dismissal does not amount to a refusal under R. 7 (3) of Or. 33. The provisions of Or. 33, R. 15 are attracted only when there is an order refusing to allow an application to sue as a pauper and such an order is one which must have been made under R. 7 (3 ). An order under R. 7 (3) is made only when the evidence is recorded and the Court hears argument. "the learned Counsel Sri Aswatharam submitted that the said decision of this Court did not consider O. 9. R. 9 and its effect on the subsequent application. The learned Counsel Sri Aswatharam relied on T. S. Subbaraya Devai v. R. Sundaresa Devai, AIR 1933 Mad 5, Krishna Rao v. Janaki Ammal, AIR 1939 Mad 681 and Ghulam Mohd. Mughlu v. Ali Mohd. , AIR 1972 Jandk 5, in support of his contentions that if O. 9, R. 9 is read along with S. 141, CPC, O. 9, R. 9 would apply even to the dismissal of a petition filed under O. 33 for default.

( 4 ) ORDER 9, Rule 9, C. P. C. reads as :"decree against plaintiff by default bars fresh suit :- (1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (2) No order should be made under this rule unless notice can be application has been served on the opposite party. "therefore, it becomes clear that O. 9, R. 9 deals with a decree against the plaintiff for default. When the dismissal of a suit results in a decree, R. 9 says that a fresh suit is barred. O. 9, R. 8 speaks as :"where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted. shall dismiss the suit so far as it relates to the remainder. "therefore, if Rr. 8 and 9 of O. 9 are read together, they cover a case of a decree which would follow in the case of a suit dismissed for default.

( 5 ) SECTION 141 of the C. P. C. reads as :"miscellaneous proceedings :- The procedure provided in this C