Per LODHA R.M., J.: - The defendants are in appeal, dissatisfied with the order dated 7-8-2006. By the said order, the learned Motion Judge restored the suit which was dismissed in default on 9-10-2003.

2. The Counsel for the respondents (original plaintiffs) raised a preliminary objection about the maintainability of the appeal. Relying upon the Division Bench judgment of the Calcutta High Court in the case of (Tulsiram Bhagwandas v. Sitaram Srigopal)1 , A.I.R. 1959 Cal. 389, the Counsel for the respondents urged that an order restoring the suit made under Order IX, Rule 9 of the C.P.C. is not a judgment and, therefore, not appealable under Clause 15 of the Letters Patent.

3. In the case of Tulsiram Bhagwandas, the Division Bench of the Calcutta High Court held thus:

"(22) It may, however, be said, although it was not so contended at the Bar, that the decision in (I.L.R. 49 Cal. 616: A.I.R. 1922 Cal. 407)2, cannot govern the present case, because there .was no dismissal for default, but a decision on the evidence, as I have found. The decision, it may be said, would apply only to an order properly made under Order 9, Rule 9, but not to an order where the Judge wrongly purports to pro

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