Niyog, A J C—The question referred to the Bench for determination is:

Whether an appeal lies from an order rejecting an application to set aside the dismissal of an application for restoration of a suit dismissed in default.

2. On this question there has been a, divergence of opinion in this Court. In Faridbi v. Mohamad Amin,1912 9 NagLR 33=19 I.C. 97, Drake-Brockman, J.C., held that no appeal lies from an order rejecting an application to set aside the dismissal of an application for restoration of a suit dismissed in default. In Kalicharan v. Ratansingh,1923 AIR(Nag) 293, Hallifax, A.J.C., took a contrary view and held that an appeal lies. In the last mentioned case no reference was made to the previously decided case reported in Faridbi v. Mohamad Amin,1912 9 NagLR 33. Hallifax, A.J.C., held that the right of appeal is only a matter of procedure and inasmuch as S. 141, Civil P.C., provides that the procedure applicable to suits shall be followed in all proceedings in any Court of civil jurisdiction, the order refusing to set aside the dismissal of the application for restoration of a suit dismissed in default must be regarded as one passed under O. 9, R. 13, Civil P.C. He