G.N.Prasad, J.

1. In this application by the defendants of Title Suit No. 37 of 1961, the question for consideration is whether the lower appellate court was justified in reversing the order of the trial court which had declined to restore the suit as applied for by the plaintiff opposite party.

2. In the suit, which was filed on 28-2-1961, an order was made for payment of deficit court-fee. The deficit court-fee not having been paid, the trial court passed an order on 3-2-1964 saying that "the suit is dismissed for default." This was, undoubtedly, not a correctly recorded order. The order should have been that the plaint was rejected for non-payment, of deficit court-fee under Rule 11 of order VII of the Code of Civil Procedure.

3. Be that as it may, the order dated 3-2-1964 was appealable as a decree. But unfortunately, the plaintiff thought fit to file a petition in the trial court labelling it as a petition under Order 9, Rule 9, and Sec.151 of the Code of Civil Procedure. The prayer was for restoration of the suit and for hearing the same on merits.

4. The trial court rightly found that Order 9, Rule 9, Code of Civil Procedure, was not attracted, and it directed its at