The inherent power of the court under Section 151 Civil Procedure Code cannot be exercised to override express provisions of the Code or to grant a relief when the ends of justice can be served by another remedy provided by the Code which is available to the party concerned.

S. BARMAN, J.

( 1 ) THE plaintiff is the petitioner in this civil revision directed against an order of the learned Munsif, 2nd Court, Cuttack, in proceedings arising out of Title Suit No. 104 of 1953, whereby the learned Munsif allowed the opposite party defendant's application under Section 151 Civil Procedure Code for restoration of a certain Misc. Case No. 274 oh 1956 hereinafter mentioned, which was dismissed for default.

( 2 ) THE matter arose in these circumstances: In 1953 the plaintiff filed a suit being Title Suit No. 104 of 1953 for partition of joint family properties. On 6-81954 a preliminary decree was passed ex parte for partition. Thereafter the plaintiff filed an application for making the decree final. A Commissioner of Partition was appointed for making the allotment. In due course the Commissioner tiled his report and allotment papers. On 12-7-1956 defendant No. 3 being the opposite party herein objected to the report of the Commissioner on certain grounds. The hearing of the objections was fixed to be heard on 9-8-1956. On that date 9-8-1956 defendant No. 3 did not appear. Accordingly an ex parte final decree was passed. On 10-9-1956 defendant No. 3 filed an application for restoration under Order 9, Rule 13 Civil Procedure Code being Misc. Case No. 274 of 1956. The said application for restoration (Misc. Cast) No. 274 of 1956) was adjourned for hearing on 20-4-1957. On 20-4-1957 the restoration application (Misc. Case No. 274 of 1956) was dismissed for default. On 17-6-1957 defendant No. 3 applied for restoration of the said application for restoration of the suit under Order 9, Rule 13 Civil Procedure Code made by him as aforesaid being Misc. Case No. 274 of 1956. The said application for restoration of Misc. Case No. 274 of 1956 made on 17-6-1957 as aforesaid was registered as Misc. Case No. 158 of 1957. On 29-8-1957, the second application for restoration, namely Misc. Case No. 158 of 1957 was allowed by the learned Munsif. Hence this revision.

( 3 ) MR. R. N. Sinha, learned counsel appearing for the plaintiff-petitioner, contended that the learned Munsif had illegally restored the said earlier Misc. Case No. 274 of 1956. He further contended that the order made on 20-4-1957 dismissing the Misc. Case No. 274 of 1956 for default was an appealable order under. Order 43, Rule l (d) of the Civil Procedure Code. The opposite party (defendant No. 3) not having appealed the said order became final. The subsequent application for restoration being Misc. Case No. 158 of 1957 under Section 151 Civil Procedure Code for restoration of Misc. Case No. 274 of 1956 was not maintainable as the learned Munsif had no jurisdiction to restore the same. On this point the learned counsel cited before me a recent Full Bench decision of the Patna High Court in Doma Chaudhury v. Ram Naresh Lal, AIR 1959 Pat 121 where it was held that the appeal lies under Order 43 Rule 1 (c) or (d) from an order rejecting for default an application under Rule 9 and Rule 13 of Order 9 respectively because on a plain reading of Clauses (c) and (d) of Order 43, Rule 1, there is no ground for discriminating between rejection of an application on merits and its rejection for default. Order 9, Rule 13 Civil Procedure Code does not, in terms, provide for dismissal of the application cm merits just as much as it does not Provide tor dismissal of the application for default. The right to dismiss, therefore, has to be gathered by necessary implication. In other words, if the Court is not so satisfied it should be "a fortiori" held that the court can reject the application whether on merits or on account of default. The argument is based upon the principles that if the Court has power to allow the application on the terms of the section, it has necessarily the power also to reject it. If, therefore, it can be argued that the dismissal of the application under Order 9, Rule 13 on merits is appealable under Clause (d) of Order 43, Rule 1, Civil Procedure