( 1 ) THIS first miscellaneous appeal is at the instance of an unsuccessful applicant under order 39 Rules 1 and 2 of the Code of Civil Procedure filed in a regular title appeal and is directed against Order No. 66 dated January 05, 2007 passed by the learned Civil Judge (Senior Division), Second Court at hooghly in Title Appeal No. 245 of 1993 thereby rejecting the said application under Order 39 Rules 1 and 2 read with section 151 of the Code of Civil procedure.

( 2 ) IN our view, the present first miscellaneous appeal is not maintainable. According to Order 43 Rule l (r) of the Code of Civil Procedure, a first miscellaneous appeal lies against an order under Order 39 Rules 1, 2, 2a, 4 and 10 of the Code of Civil Procedure. The opening sentence of Order 39 Rule 1 of the Code of Civil Procedure starts with the phrase "where in any suit it is proved by affidavit or otherwise. . . . . . . . . . ". Therefore, Order 39 Rules 1 and 2 of the Code is applicable only to the suits. However, by virtue of the provisions contained in section 141 of the Code, the procedure provided in the Code of civil Procedure in regard to the suits should be followed as far it can be made applicable in all proceedings of any Court of Civil Jurisdiction.

( 3 ) IT may not be out of place to mention here that the corresponding section 646 of the Code of 1882 read as follows: "the procedure herein prescribed shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil Jurisdiction other than suits and appeals".

( 4 ) HOWEVER, in the Code of 1908, the section 141 has been refrained as follows by deleting the words "other than suits and appeals" and incorporating the phrase "in all proceedings": "the procedure provided in this Code in regards to suits shall be followed, as far it can be made applicable, in all proceedings in any Court of Civil jurisdiction".

( 5 ) SUBSEQUENTLY, by way of amendment in the year 1976, an Explanation has been added.

( 6 ) THE Supreme Court in the case of Ram Chandra vs. State of U. P. , reported in AIR 1966 SC 1888 at page 1891 observed that the word "proceeding" appearing in section 141 of the Code is not necessarily confined to the original proceedings like suit, application for appointment of guardian, etc.

( 7 ) THEREFORE, after the deletion of the word "appeals" and the aforesaid observation of the Apex Court, there cannot be any doubt that by taking aid of section 141 of the Code, the provisions contained in Order 39 Rules 1 and 2 which primarily relate only to suits can be made applicable to an appeal preferred against a decree passed by the Trial Court.

( 8 ) NOW the question arises whether an appeal will lie against any order passed on such an application under Order 39 Rules 1 and 2 Code filed before the Appellate Court.

( 9 ) IT is now settled law that by taking support of section 141 of the Code, only the procedural parts of the Code of Civil Procedure can be made applicable, but substantive provisions which confer substantive right upon a party cannot be resorted to with the help of section 141 of the Code (See Osmani Khan vs. Sagar Mal, reported in AIR 1965 SC 1798 at page 1801 (paragraph 7 ).

( 10 ) THEREFORE, although the provisions contained in Order 39 Rules 1 and 2 of the Code will be applicable before an appellate Court dealing with a regular appeal against a decree, if such application is disposed of, the substantive right of appeal created under section 104 of the Code is not available to an aggrieved person by taking help of section 141 of the Code [see in this connection, the observations of a Special Bench of this Court in Mst. Nurnahar Bewa vs. Rabindra Nath Deb, reported in 1988 (1) CHN 461].

( 11 ) WE are also not impressed by the submission of the learned Counsel for the appellant that an appeal being really the continuation of a suit, an order passed on an application under Order 39 Rules 1 and 2 of the Code in an appeal would come within the purview of

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