1. O.S. No. 121 of 1940 on the file of the District Munsif's Court, Anantapur, was dismissed for default on 22nd July, 1941. An application to set aside the dismissal for default was filed on 25th July, 1941, by I. A. No. 474 of 1941. This application was dismissed for default by an order dated 1st October, 1941. Against this order an appeal was preferred by the plaintiff and the District Judge of Anantapur dismissed the appeal holding that no appeal lay against the order of the District Munsif dated 1st October, 1941.
2. Order 43, Rule 1 (c) under which the appeal was preferred to the lower appellate Court runs thus;
An appeal shall lie from the following orders under the provisions of Section 104, namely :-(c) an order under Rule 9 of Order 9 rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit.
3. This order applies in terms to the order of the District Munsif dated the 1st October, 1941. I. A. No. 474 of 1941 was an application for an order to set aside the dismissal of the suit, and the order passed on 1st October, 1941, rejecting this application for default is certainly an order rejecting the application for an order to set aside the dismissal of a suit. Apparently there is no reason to confine the order passed on an application under Order 9, Rule 9 to one passed on the merits. Whether that application was dismissed on the merits or for default, it is nevertheless an order rejecting an application for an order to set aside the dismissal of a suit. The wording of Order 43, Rule 1 (c) is in support of an appeal being entertained under that clause. The District Judge referred to the decision in Bajit Lal Pathak v. Mahardjadhiraj Sir Rameshwar Singh Bahadur I.L.R.(1928) Pat. 333. That decision held that an order dismissing a petition under Order 9, Rule 9 for default was not appealable. As no case of any other High Court in point was brought to the notice of the District Judge, he considered that he ought to follow that decision and he accordingly rejected the appeal. In this Court, the correctness of the above decision of the Patna High Court is challenged. The respondents do not appeal and, as I thought that some one should represent the case of the respondents, I requested Mr. Kalyanasundaram to argue the matter as amicus curiae. He was good enough to do so and has brought to my notice various decisions of the other High Courts which bear on the question.
4. There is a direct decision of the Allahabad High Court on the question whether an order dismissing for default an application under Order 9, Rule 9 is appealable under Order 43, Rule 1 (c), in Uma Datt v. Mt. Zakia Bibi : AIR1936All737 . It is unfortunate that this decision was not brought to the notice of the lower appellate Court. The learned Judges, Harries and Bajpai, JJ., held that an appeal does lie. They pointed out that there is no reason to restrict an order under Order 9, Rule 9 to one passed on the merits. They referred to the decision of the Patna High Court in Mufti Reazuddin v. Lala Maheshanand I.L.R.(1928) Pat. 533 which dealt with an order passed under Order 9, Rule 13. In that case, the suit had been decreed ex parte; an application to set aside the decree ex parte was dismissed for default; an appeal was filed against that order; and the question was whether an appeal lay. The learned Judges held that an appeal lay under Order 43, Rule 1 (d) and pointed out that there was no reason to restrict an appealable order to one passed on the merits. One of the learned Judges made a reference to the earlier decision of that Court in Bajit Lal Pathak v. Maharajadhiraj Sir Rameshwar Singh Bahadur I.L.R.(1928) Pat. 333 on which the lower appellate Court relied in this case and said that he did not agree with that decision. Had the attention of the District Judge been drawn to this later decision of the Patna High Court and to the decision of the Allahabad High Court just referred to, the decision of the lower appellate Court might well have been otherwise. In addition to the decision in Mufti Reazuddin v. Lala Maheshanand I.L.R.(1928) Pat. 533 there is an earlier decision of that Court in Mussamat Bodhia v. Ram Chandra Marwari I.L.R.(1927) Pat. 474 which also held that, where an application to set aside an ex parte decree had been dismissed for default under Order 9, Rule 13, an appeal lay under the provisions of Order 43, Rule 1 (d). The learned Judges referred to and followed the decision of the Calcutta High Court to that effect in Kumud Kumar Bose v. Hari Mohan Samaddar (1916) Cri.L.J. 628 where Mookerjee and Newbould, JJ., pointed out that it was immaterial that the application to set aside the ex parte decree had been dismissed, not on the merits, but for default. The same view was taken by the Calcutta High Court in a later decision in Ansarali v. Bhim Sankar Datta Tewari I.L.R.(1929) Cal. 969 where an application under Order 21, Rules 90 and 92 had been dismissed for default and the question was whether an appeal lay under Order 43, Rule 1 (j). The wording of Clauses (c), (d) and (j) of and (j) of Rule 1 of Order 43 is similar and the decisions under the clauses apply. The case falls under Clause (c) of Rule 1 of Order 43.
5. I hold that an appeal lay to the lower appellate Court and that the order of the District Judge holding that no appeal lay is erroneous. I set aside the order of the District Judge and remand the appeal for disposal according to law. The costs of this revision will be provided for in the appeal.
6. I am indebted to Mr. Kalyanasundaram far having brought to my notice the decisions referred to above, and he is quite right in having done so, though the decisions are really against the respondents.