A conditional order passed in an application filed under Order 9 Rule 9 or Order 9 Rule 13 of the Code of Civil Procedure, 1908, which effectively disposes of the relative application, is an appealable order under Order 43 Rule 1 of the Code of Civil Procedure, 1908.

ORDER :- The petitioners filed a suit in the District Munsif Court, Tirukoilur, for redemption of a mortgage against the respondent. The suit was dismissed for default. The petitioners then filed an application under Order 9 R.9 C.P.C., to set aside the dismissal of the suit. In that application the learned District Munsif passed an order to the effect that the application will be allowed on payment of costs by the petitioners to the respondents on or before 2-11-1971, and he further directed the application to be called on 3-11-1971. When the application was called on 3-11-1971, it was found that the petitioners had not deposited the costs. The District Munsif thereupon dismissed the application after recording the fact that costs had not been paid.

2. The petitioners preferred an appeal to the District Court. The appeal was particularly directed against the order dated 23-10-1971. The District Judge however dismissed the appeal as incompetent. He made a reference to the two orders passed by the District Munsif one on 23-10-1971 and the other on 3-11-1971. After analysing the nature of the two orders, he held that the former was a conditional order and not appealable, and the latter was an appealable order but not appealed against. On this reasoning, the appeal was dismissed.

3. In this revision, Mr. M.N. Padmanabhan, the petitioners' learned counsel, urges that the District Judge failed to exercise his jurisdiction by taking a wrong view about the appealability of the order dated 23-10-1971. Learned counsel relied on a Division Bench ruling of this Court reported in Ramayya v. Lakshmayya, (1944) 1 Mad LJ 381 : (AIR 1944 Mad 383). Learned counsel pointed out that the order which the Division Bench held as appealable in that case was also a conditional order for setting aside an ex parte decree, the condition being payment of costs on or before a particular date. Learned counsel pointed out that even though there was a follow up order subsequently, the Division Bench held that the earlier order was appealable.

4. I have perused the judgement of the Division Bench cited by Mr. Padmanabhan, I agree that the principle of that decision is applicable to the present case.

5. Mr. K. Selvaratnam, learned counsel for the respondents, sought to distinguish the Bench decision in Ramayya v. Lakshmayya, (1944) 1 Mad LJ 381 : (AIR 1944 Mad 383). He sought to spell out a difference between the kind of order which figured before the Division Bench and the order passed in the present case under revision. Mr. Selvaratnam did not make any point about the distinction that in the case before the Division Bench the order in question was passed in an application under O.9 R.13 of the Code, whereas the order under revision in the present case was passed in an application made under O.9 R.9 of the Code. He did not dwell on the difference because the provision for appeal was available whether the order appealed against is one made under Order 9 Rule 9 or one made under O.9 Rule 13 of the Code, both appeals being provided for in Order 43 Rule 1. The material point which Mr. Selvaratnam sought to make out was a distinction based on the wording found in the order which the Division Bench had to examine in the case cited. That order was in the following terms :-

"I therefore order the petitioner to pay Rs. 100 for costs of the respondents irrespective of the result of the suits within 15 days from this date. They shall also deposit costs of the suits as a condition precedent before the trial of the suits which are hereby restored to file and posted peremptorily to the 26th July, 1943. In default, the petition will stand dismissed with costs."

The decretal order in the same case some what more accurately expressed its terms as under :-

"It is ordered that the petition be and the same is hereby allowed. It is further ordered that the petitioners do deposit into Court a sum of Rs. 100 towards their costs in this petition and also in I.A. Nos.569, 570 and 6