An application invoking the inherent powers of the Court under Section 151, C. P. C. is not governed by Article 181 or any other article of the Limitation Act.

( 1 ) THIS matter comes up before us on a reference by our learned brother Tare J. for decision on the question as to the period of limitation for an application for restoration of an application under Order 9 Rule 9 C. P. C. which itself has been dismissed in default.

( 2 ) THE petitioner Pooranchand's suit was dismissed for default in appearance under order 9 Rule 8 C. P. C. He then filed an application under Rule 9 for restoration. This application for restoration was itself dismissed for default of appearance on 3rd September 1959. Thereupon on 30th November 1959 the petitioner made an application for setting aside the dismissal of his application for restoration. This application was rejected by the trial Court on the ground of limitation relying on pitambar Lal v. Dodee Singh, ILR 46 All 319: (AIR 1924 All 503 ). In the Allahabad case it was held that an application for setting aside the dismissal in default of an application for restoration under Order 9 Rule 9 could itself be treated as an application for restoration of the suit and would be governed by Article 163 of the limitation Act.

( 3 ) FROM what the learned Judge has said in the order of reference, it appears that before him it was not disputed that an application for setting aside the dismissal in default of an application for restoration under Order 9 Rule 9 was competent under section 151 C. P. C. The controversy centred round the question as to whether an application for invoking the inherent powers of the Court under Section 151 was governed by Article 163 or by Article 181 of the Limitation Act. The learned Single judge thought it necessary to make this reference, as in his opinion, the question was of frequent occurrence and was not covered by any decision of this Court or any other High Court.

( 4 ) BEFORE answering the question as regards limitation posed by the learned Single judge, it is necessary to determine the provision under which an application for setting aside the dismissal for default of an application for restoration under Order 9 Rule 9 C. P. C. is maintainable. In Brijmohan v. Raghoba, 28 Nag LR 83 : (AIR 1932 Nag 101) it has been held by a Division Bench of the Nagpur Judicial commissioner's Court that no appeal lies from an order rejecting an application to set aside the dismissal for default of an application for restoration of a suit dismissed in default, and that the dismissal of such an application can be set aside under Section 151. The learned Judges based this conclusion on the reasoning that Section 104 (1) (i)and Order 43 Rule 1 C. P. C. did not provide for an appeal against an order of dismissal for default of an application for restoration of a suit under Order 9 Rule 9; that the right of appeal being a substantive right could not be inferred by the application of Section 141 which only made the procedure in the Code applicable, in so far as it could be, in all proceedings in any court of civil jurisdiction and did not give any substantive right; and that, therefore, an under of dismissal for default of an application for restoration of a suit under Order 9 Rule 9 was not appealable under Order 43 Rule 1 (c ). On the same reasoning the learned Judges treating the remedy under Order 9 Rule 9 as a substantive one held that it was not available by resorting to Section 141 C. P. C. , for setting aside the dismissal in default of an application for restoration of a suit under Order 9 Rule 9. This decision was followed by a Single Judge of the Nagpur High Court in Prem Shankar v. Rampyarelal, ILR (1944) Nag 558: (AIR 1944 Nag 317 ).

( 5 ) WE entirely agree with the view expressed in 28 Nag LR 83: (AIR 1932 Nag 101) (supra ). Order 9 in terms applies only to suits. The remedy under Order 9 rule 9 C. P. C. is not a matter of procedure (See Sitaram v. Bapurao, 1953 Nag LJ 144: (AIR 1953 Nap 153 ). The rule gives a substantive right of applying for restoration of a suit dismissed for default and this right cannot be confer