Shivdayal. C.J.- 1. An apparent conflict between Pooranchand v. Komalchand 1961 JLJ 1165 = AIR 1962 MP 64 (Dixit, C.J. and Pandey, J.) and Komalchand v. Pooranchand 1970 JLJ 11 = 1969 MPLJ 937 (Naik and Singh, J.) has led to this reference. Three questions have been referred to us :

"(1) Whether an appeal lies under Order 43, rule 1 (c), rejecting/dismissing for default an application under Order 17, rule 2, read with Order 9, rule 9, C.P.C.?

(2) Whether the Division Bench which decided Komalchand v. Pooranchand 1970 JLJ 11 = 1969 MPLJ 937 (Naik and Singh, J.), could take a contrary view to the one taken in Pooranchand v. Komalchand 1961 JLJ 1165 = AIR 1962 MP 64 (Dixit, C.J. and Pandey, J.), which had been decided by a Division Bench?

(3) Whether the earlier decision in Pooranchand v. Komalchand 1961 JLJ 1165 = AIR 1962 MP 64 (Dixit, C.J. and Pandey, J.), operated as res judicata in the later case (Komalchand v. Pooranchand) 1970 JLJ 11 = 1969 MPLJ 937 (Naik and Singh, J.)?".

2. The first question is of general importance and frequent occurrence on which conflicting views were taken by the two Division Benches. The second and third questions arise because of the two particular de