An appeal lies from an order dismissing for default an application under Rule 9 of Order IX of the Code of Civil Procedure, and the Court has no inherent power to restore such an application when the remedy by way of appeal is available.

K.Sahai, J.

1. The principal point which requires consideration in this case is whether a Court can, in exercise of its inherent power set aside an order of dismissal for default of an application under Rule 9 of Order IX of the Code of Civil Procedure and restore the application.

2. The facts necessary to appreciate the points which have to be considered are these. The plaintiffs, who are the opposite party in this Court, filed Title Suit No. 19 of 1950 in the Munsif 1st Court at Sasaram. One of the dates fixed in the case was the 21st June. 1954. On that date, the defendants filed hazri, and the plaintiffs pleader filed a petition for time, but that petition was dismissed. The parties were directed to get ready at once for hearing of the suit.

Later, the suit was called out; but no one responded on behalf of the plaintiffs. It was therefore, dismissed for default. On the 20th July, 1954, the plaintiffs filed an application under Rule 9 of Order IX of the Code for an order to set aside the dismissal of the suit. This was registered as Miscellaneous Case No. 20 of 1954. On the 4th December, 1954, that case was also dismissed for default.

On the same day, however, the plaintiffs filed an application under Sec.151 of the Code for its restoration. This application was registered as Miscellaneous Case No. 37 of 1954. By an order dated the 13th January, 1955, the learned Munsif set aside the dismissal of Miscellaneous Case No. 20, and restored it. This application for revision under Sec.115 of the Code has been filed against that order. It has been referred to this Bench on account of conflict of authority in this. Court on one of the points which has to be decided.

3. Appearing on behalf of the petitioners. Mr. Dasu Sinha has put forward the argument that an appeal lies under Rule 1(c) of Order XLIII of the Code against an order rejecting an application under Rule 9 of Order IX in a case open to appeal, and that the appeal lies irrespective of whether the application is rejected on merits or is dismissed for default.

He has also contended that the Munsif had no jurisdiction to set aside the dismissal of the application in exercise of the Courts inherent power when the remedy by way of appeal was available to the plaintiffs, and that, by setting side the dismissal of the application, the learned Munsif has usurped the function of the appellate Court.

On the other hand, Mr. D.N. Varma appearing on behalf of the plaintiffs opposite party, stated at first that he was not ready for want of instructions. Later, however, he made some submissions. His argument is that no appeal lies against an order of dismissal for default of an application under Rule 9 of Order IX, though an appeal lies against an order whereby such an application is rejected on merits.

In support of this argument, he has relied upon Jagdish Narain Prashad Singh V/s. Harbans Narain Singh 2 Pat LJ 720: (AIR 1918 Pat 612) and Bajit Lal V/s. Rameshwar Singh ILR 7 Pat 333: (AIR 1928 Pat 335). He has also contended that a Court has inherent jurisdiction to do justice, and that it can restore an application under Rule 9 in exercise of that jurisdiction. He has referred to Banshidar Kanungo V/s. Nabab Khan AIR 1949 Pat 190 and Mt. Balmati Kuari V/s. Jagbandhan Nath AIR 1950 Pat 497 on this point. He has further submitted that, on merits, the case was rather hard for the plaintiffs, and the learned Munsif was right in restoring the application in Miscellaneous Case No. 20.

4. The first question which I propose to discuss is whether an appeal lies from an order, dismissing for default an application under Rule 9 of Order IX. An application under Rule 9 is filed when a suit is wholly or partly dismissed under Rule 8. That rule provides for dismissal of a suit when at the time of its being called on for hearing, the defendant appears and the plaintiff does not. It is under Rule 13 that a defendant may apply to a Court to set aside an ex parte decree which that Court has pa