An order under Order IX Rule 4 of the Code of Civil Procedure is a 'judgment' within the meaning of Clause 15 of the Letters Patent and hence appealable.

( 1 ) ON January 24, 1969 the appellant instituted the suit being suit No. 341 of 1969 against the predecessor in title of the respondent for the enforcement of a mortgage and a decree under Order XXXIV, Rule 4 of the Code of Civil Procedure in form No. 5 Appendix 'd' to Schedule I of the said Code.

( 2 ) THE original defendant filed her written statement. Upon the death of the original defendant on June 7, 1963 (?) the present respondent was substituted in the place and stead of the original defendant. The respondent filed her written statement in the suit on June 12, 1970. On April 24. 1972 the suit which had been appearing in the peremptory list of S. C. Deb J. for several days, was called on at about 12-15 p. m. The petitioner's counsel Mr. P. K. . Roy was not present at that time. The suit was passed over on the prayer of the Solicitor for the appellants.

( 3 ) THE Solicitor for the appellant thereafter went to the counsel Mr. P. K. Roy in the court of P. K. Banerjee J. Mr. Roy was addressing the Court at that lime. At about 12-35 p. m. , Mr. Roy concluded his address at the Court of P. K. Banerjee. J. and became engaged in certain company matters in the Court of Salil Kumar Roy Chowdhury J. Mr. Roy as soon as he was free, went to the Court of Deb, J. at about 12-55 p. m. Mr. Roy and the Solicitor for the appellant came to know that the suit had been called on in the meantime twice and dismissed for non-prosecution. The matter was mentioned by the learned counsel for the appellant at the time of rising of the Court during the mid-day recess; no order was made at that time since nobody on behalf of the respondent was present in Court.

( 4 ) AFTER the mid-day recess, the matter was again mentioned by the counsel for the appellant. The counsel for the respondent Mr. T. K. Biswas consented to the restoration of the suit on the list. Nonetheless, the learned Judge directed that a formal application should be made by the appellant. The appellant made an application for the restoration of the suit. The same was opposed by the respondent. The said application was dismissed by the learned Judge.

( 5 ) IN this appeal, the appellant challenges the said order and prays for setting aside of the same and restoration of the suit on the list for hearing. Mr. Biswas appearing on behalf of the respondent took a preliminary. objection, namely, that the order under appeal was not appealable. Mr. Biswas submitted that none of the parties appeared at the time when the suit was called on for hearing and thus the suit was dismissed for non-prosecution under Rule 3 of Order IX of the Code of Civil Procedure. The application for restoration of the suit thus was made under the provisions of Rule 4 of Order IX of the Code. The order under appeal was made in the said application. Order made in an application under Rule 4 of Order IX of the Code of Civil Procedure is not appealable, under the Code of Civil Procedure, inasmuch as the said order has not been made appealable by Order 43 read with Section 104 of the Code of Civil Procedure. Mr. Biswas in support of his submission relied on the case of Nanalal M. V. (Gunnies) and Co. Pvt. Ltd. v. Gordhan Das Jerambhai. It was decided by a Division Bench of this Court in the said case, that an order made under Order IX Rule 4 of the Code of Civil Procedure was not appealable in view of the provisions of Order 43 read with Section 104 of the Code. In the said case, however, it was neither urged nor considered by the Court as to whether such an order was a 'judgment' within the meaning of Clause 15 of the Letters Patent. If the order under appeal be a 'judgment' within the meaning of Clause 15 of Letters Patent, the order would certainly be appealable.

( 6 ) THE term 'judgment' appearing in Clause 15 of the Letters Patent has been considered time and again by different Courts. It must be noted that the Courts have more often than not come to impute various meanings to the said expression. But