An appeal does not lie to the High Court under O. 43, R. 1 CPC against an order of the Commissioner Workmen's Compensation dismissing an application to set aside an ex-parte award, as the provisions of O. 43, R. 1 CPC are excluded by R. 41 of the Workmen's Compensation Rules, 1924.

1. - The principal question that requires my consideration in the instant miscellaneous appeal is as to whether civil miscellaneous appeal u/0. 43, R. 1 CPC is maintainable against the order of Commissioner Workmen's Compensation, declined to set aside the er-parte award u/0. 9, R. 13 CPC.

2. Brief re'sume' of the facts is that ex-parte award came to be passed vide order dated 16.9.1996 by the Commissioner Workmen's Compensation, Bharatpur (in short `the Commissioner') against the appellant-Vikram Singh Verma (for short `the appellant'). The appellant moved an application u/O. 9, R. 13 CPC for setting aside the ex-parte award on the ground that no notice was served upon him and from the perusal of the record it came to the notice of the appellant that an endorsement was made by the postman on the envelope to the effect that the appellant refused to take the delivery of the registered envelope. It was averred in the application that the appellant was continuously ill with affect from 25.2.1996 to 11.5.1996 and was taking medical treatencrd in Agra, therefore during this period the question of service of any notice did not arise at all. The postman in village Patholi is the resident of the same village and he is having a political enmity with the appellant and therefore without tendering the notice made a false endorsement on the envelope. It was further pleaded that the deceased-Sobran was never in the employment of the appellant and the appellant is not the employer of deceased-Sobran. Deceased-Sobran's date of birth was 1.2.1981 and therefore at the age of 14 years question of employment did not arise. The appellant came to know about the ex-parte judgment on 16.9.1997 from the Tehsil and immediately he took steps for getting the certified copy for setting aside the ex-parte judgment. The learned Commissioner dismissed the application on the ground that he was not having jurisdiction to decide any application u/0. 9, R. 13 CPC vide the impugned order.

3. Mr. Gopal Garg, learned counsel appearing for the appellant canvassed that the provisions of 0.9 R. 13 CPC are applicable in the proceedings before the Commissioner in view of R. 41 of the Workmen's Compensation Rules, 1924 (in short 'the Rules of 1924'). The appeal is also competent u/0. 43, R. I CPC against the impugned order.

4. On the other hand, Mr. D.C. Gupta, learned counsel appearing for the respondents contended that no appeal is maintainable u/0. 43 R. 1 CPC. The only course which is open to the appellant is to file appeal under section 30 of the Workmen's Compensation Act, 1923 (for short `the Act'). Reliance was placed on Praveen Industries & Ors. v. Sri Banawar Singh, II (1990) ACC 108 (DB) , Bashir Khan v. Ranger Social Vaniki & Ors., RLR 1994 (1) page 27 and Krishna Lime Works v. Presiding Officer, 1988 (2) WLN 598 .

5. I have reflected over the rival submissions and carefully scanned the material on record. Rule 41 of the Workmen's Compensation Rules, 1924, provides thus:-

"41. Certain provisions of Code of Civil Procedure, 1908 to apply : Save as otherwise expressly provided in the Actor these Rules, the following provisions of the First Schedule to the Code of Civil Procedure, 1908 namely those contained in 0. V, Rr. 9 to 13 & 15 to 30; 0. IX; 0. XIII, Rr. 3 to 10; 0. XVI Rr. 2 to 21; 0. XVII & 0. XXIII, Rr. I & 2 shall apply to proceedings before Commissioners, in so far as they may be applicable thereto:

"Provided that x x x x x x x x x x x"

6. A look at the aforesaid provision demonstrates that provisions contained in 0. 9, R. 13 of the Code of Civil Procedure are applicable in the proceedings before the Commis- sioner. Therefore an application for setting aside the ex-parte judgment could be tiled before the Commissioner. The only question which requires my consideration is whether appeal lies to this Court u/0. 43, R. I CPC against the order made by the Commissioner dismissing the application u/O. 9, R. 13 CPC. As is evident from the perusal of R.