The right of appeal is not merely a matter of procedure but one of substance, and it cannot arise by implication but only by virtue of an express enactment.

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 arrived at this result by assuming that after the word 'suit' wherever it occurs in R. 9, O. 9, the following words must be read ''or other proceeding to which this rule applies by virtue of S. 141'' and by parity of reasoning the learned Additional Judicial Commissioner inferred that the same words must be added after the word ''suit'' in Cl. (c), R. 1, O. 43.

3. Having regard to the observations made by their Lordships of the Privy Council in Thakur Prasad v. Fakirullah,1895 17 ILR(All) 106, to the effect that the proceedings spoken of in S. 647 of the Code of 1882 which corresponds to S. 141 of the Code of 1908, include original matters in the nature of suits such as proceedings in probates, guardianships, and so forth, it is doubtful whether S. 141, Civil P.C., would be applicable to cases of applications to set aside the dismissal of an application for restoration of a suit dismissed in default. In any case S. 141 cannot be interpreted as giving a substantive right to make such applications. In the absence of any express provision in the Code the right to 'make such applications is implied in S. 151, Civil P.C. In Sarat Chanda a Bose v. Bisweswar Mitra, 1927 AIR(Cal) 534 it was held that an application in so far as it purported to be under O. 9, R. 9, was not competent, but that the provisions of S. 151, Civil P.C. may be resorted to in order to do real and substantial justice. That is also the view of the Allahabad High Court: see Ganesh Prasad v. Bhagelu Ram, 1925 AIR(All) 773 All. 878. If therefore it is treated as an application made to invoke the inherent powers vested in the Court under S. 151, Civil P. C, the order passed thereon must be regarded as having been passed under that section. The view expressed in Manikji v. Surajmal,1911 7 NLR 32 and followed in Fartdbi v. Mohamad Amin,1912 9 NLR 16 that S. 141 operates to give the same remedy in respect of an application as the one provided for in O. 9 in respect of a suit, does not appear to be sound. The correctness of the ruling reported in Manakji v. Surajmal,1911 7 NLR 32 was doubted by Hallifax, A.J.C., himself in Harlal v. Narayan, 1922 AIR(Nag) 267. Even on the assumption that by virtue of S. 141 the procedure provided in O. 9 is applicable to the proceeding arising out of such an application as the present, the application itself not being one for setting aside the dismissal of a suit, the order cannot be treated as one passed under O. 9, R. 13. The addition of the words suggested by Hallifax, A.J.C., after the word ''suit'' in O. 9, R. 9, Civil P.C., is obviously not the right method of interpretation.

4. Sections 96 and 104 are the only provisions which confer a right of appeal. It is only by virtue of S. 104(1)(i) that the orders made under rules specified in O. 43, R. 1, become ap