The inherent power under Section 151 of the Code of Civil Procedure cannot be invoked to set aside an order dismissing an application under Order 9, Rule 13 when an express remedy is provided by the Code.

( 1 ) AN application under Order 9, Rule 13 of the Code of Civil Procedure made by the petitioner to set aside an ex parte decree for eviction passed against him was itself dismissed for default. The petitioner then applied under Section 151 of the Code to set aside the order of dismissal stating reasons for his non-appearance when the application under Order 9, Rule 13 was called on for hearing. The Court below dismissed the application under Section 151 on the ground that as the Code provides an appeal from an order dismissing an application under Order 9, Rule 13. the application under Section 151 was not maintainable. The legality of this last order is in question in this Rule.

( 2 ) MR. A. K. Motilal learned Advocate for the petitioner, raised two contentions to show that the order passed by the learned Munsif was wrong. Mr. Motilal submitted, first, that the order dismissing for default the application under Order 9, Rule 13 was not appealable and, secondly, even if the order was appealable this did not preclude the Court from setting aside the order of dismissal in exercise of its inherent power, if on the facts of the case the Court thought that it was necessary to do so for the ends of justice.

( 3 ) AS regards the first contention, the point is covered so far as this Court is concerned by a decision of a Division Bench reported in 21 Cal LJ 628 = (AIR 1916 Cal 391), Kumud Kumar Bose v. Hari Mohan Samaddar, where it has been held that an order dismissing an application to set aside an ex parte decree, whether on the merits or for default is appealable under Order 43, Rule 1 (d) of the Code. The first submission of Mr. Motilal, therefore, fails.

( 4 ) MR. Motilal next contended that even if an appeal lay from an Order dismissing for default an application under Order 9, Rule 13, the relief is illusory because in such an appeal the appellant cannot canvass the ground that there was sufficient cause for his non-appearance when the application under Order 9, Rule 13 was taken up for hearing. Mr. Motilal submitted that it was, therefore, not only desirable but also proper for the Court to invoke its inherent power under Section 151 of the Code to do justice in such a case. In support of his contention Mr. Motilal referred to a number of decisions of different High Courts including two Bench decisions of this Court namely 31 Cal W N 576= (AIR 1927 Cal 534), Sarat Kumar Bose v. Bisweswar Mitra and 32 Cal WN 811, = (AIR 1929 Cal 17), Sourendra Nath Mitter v. Jatindra Nath Bose. The two Calcutta cases contain certain observations which indeed support the view that 'where the dismissal for default is not due to laches on the part- of the applicant, the Court can allow an application under Section 151 to set aside an order dismissing for default an application under Order 9, Rule 13. But these observations made in said two cases appear to have proceeded on the view that the Code of Civil Procedure does not contain any express provision for setting aside an order of dismissal for default in such case. I have already referred to the decision in 21 Cal LJ 628 = (AIR 1916 Cal 391) which holds that an order of dismissal for default is also appealable. Further, it has been held by another Division Bench of this Court, Jnanendra v. Profullananda, 32 Cal W N 101 = (AIR 1928 Cal 812) that in an appeal from an ex parte decree the appellant can urge that there was sufficient cause for his non-appearance at the hearing of the application under Order 9, R, 13. This decision answers the contention that an appeal provided from an ex parte order of dismissal is an illusory right. A later decision of this Court, also of a Division Bench, holds that if a litigant does not choose to avail of a right of appeal provided by the Statute, the Court could not exercise its inherent power to give him relief; Abdul Jabbar v. Azizar Rahaman, 41 Cal WN 893 = (AIR 1937 Cal 425 ).

( 5 ) MORE recently another Division Bench of this Court on