An order dismissing a case for default under Section 47 of the Civil Procedure Code is not a decree and therefore not appealable.

N.L.Untwalia, J.

1. An application of the Judgment-debtor-petitioners for setting the sale aside was dismissed for default on the 4th June, 1960. Thereafter, the petitioners filed an application under Sec.151, Civil Procedure Code, to restore the said miscellaneous case. The learned Munsif on merits has accepted the case made out by the petitioners for restoration of miscellaneous case No. 103 of 1959, that is to say, the case started for setting aside the sale; but he has refused to restore the said case on the ground that in exercise of the inherent powers he cannot restore it as the order dated the 4th June, 1960, dismissing the miscellaneous case for default was an appealable one. In my opinion, the learned Munsif has refused to exercise jurisdiction by taking an erroneous view of the law. Having heard the facts of the miscellaneous case dismissed for default from the advocates for the parties, I am of the view (of course, this view is being expressed for this case only) that the said case was under Sec. 47, Civil Procedure Code. That being so, an order dismissing the application under Section 47 I for default is not a decree within the meaning of Sec.2 (2), Civil Procedure Code, as it is provided in that sub-section,

"It shall be deemed to, include the rejection of a plaint and the determination of any question within Sec. 47 or Sec.144, but shall not include -- X X X

(b) any order of dismissal for default".

There is a decision of Sulaiman, J., (as he then was) of the Allahabad High Court in support of this view in Hira Lal V/s. Tikam Singh., AIR 1926 All 401. Reference may also be made to a Bench decision of this Court in Surajdeo Narain Singh V/s. Partap Rai, AIR 1923 Pat 514, where an order dismissing an appeal for default was held to be not a decree within the definition of the term as given in the Code of Civil Procedure. There was a divergence of opinion between the various High Courts prior to the enactment of the Code of 1908, but the legislature intervened and by bringing about a change in the relevant language of the Code it has been provided that an order dismissing a case under Section 47, Civil Procedure Code, for default is not a decree. It follows manifestly that if it is not a decree, it is not appealable either.

2 In the result, I allow the application, set aside the order of the Court below and direct that the Miscellaneous case No. 103 of 1959 shall be restored to its original file and the learned Munsif will proceed to dispose it of according to law. I would make no order as to costs.