1. On 23rd November, 1937, a sale was held in execution of a decree. On 6th May, 1938, an application was preferred by the judgment-debtor under Section 23 of Madras Act IV of 1938 to set aside the sale on the ground that he was an agriculturist entitled to the benefits of that Act. The application was pending till 10th June, 1944, when the District Munsiff passed the following order:
(1) Petitioner absent and his vakil reports no instructions.
(2) Petition dismissed with costs.
No attempt was made to get the application restored to file. The lower appellate Court assumes that the procedure under Order 9, Rule 9 of the Code of Civil Procedure would not be available; but I am of the opinion that that assumption is wrong having regard to the decision in Satyanarayana v. Peddi Naidu : AIR1941Mad362 . Instead of taking the procedure of applying for restoration of the application, the applicant filed an appeal purporting to be under Section 25-A incorporated into Madras Act IV of 1938 by the Amending Act XV of 1943. That section provides:
An appeal shall lie from any of the following orders passed by a Court under this Act, as if such order related to the execution, discharge or satisfaction of a decree within the meaning of Section 47 of the Code of Civil Procedure...(C) An order under Section 23 setting aside or refusing to set aside any sale or foreclosure of immoveable property.
The Subordinate Judge held that no appeal lay and the present second appeal questions the correctness of that order. The only question, therefore, is whether this order dismissing the petition owing to the absence of the petitioner and his vakil reporting ' No instructions ' can be regarded as an order under Section 23 of Madras Act IV of 1938 refusing to set aside the sale.
2. It is argued for the appellant that seeing that this order is passed on a petition under Section 23 under the Act, the order must be regarded as an order refusing to set aside the sale and that, necessarily, the appellate provision will be attracted to it. It seems to me that when once it is established that by reason of Section 141 of the Code of Civil Procedure the provisions of Order 17 and Order 9 of the Code of Civil Procedure are attracted to the trial of petitions under Section 23 of the Madras Act IV of 01938, the logical way of regarding this order dismissing the application for default, is to regard it as an order, not under Section 23 of Madras Act IV of 1938, but under Order 9, Rule 8 of the Code of Civil Procedure. Seeing that such an order would give rise to a right to apply for the restoration of the application and its hearing on the merits, it must necessarily be held that there is no order on the merits already. If the dismissal for default was to be regarded as an order refusing to set aside the sale, then the. restoration of the application to file would be of no avail to the applicant, for he would be confronted with the decision on the merits adverse to him, with reference to which his only remedy would be an appeal without any evidence upon which to base his appeal. The scheme of the Code of Civil Procedure is to regard orders passed under Order 9, Rule 8 of the Code as orders sui generis giving rise to the remedy of an application for restoration and a special right of appeal conferred under Order 43, Rule 1 of the Code in case such an application is dismissed. It is not the intention of the Code-and that is made clear by the definition of ' decree '-that the plaintiff whose suit has been dismissed for default should have two remedies, one, the remedy of an application to restore the suit to file and the other, an appeal against the dismissal as if it were a decree. When we hold that by virtue of Section 141 of the Code of Civil Procedure, the procedure under Order 9 is attracted to the trial of petitions under the main provisions of Madras Act IV of 1938, we are in fact holding that the dismissal for default of a petition such as that now under consideration is not a decision either to grant or to refuse the prayer in the petition but is an order of a procedural nature which attracts a special procedural remedy and does not give rise to the right of appeal attaching to the determination of the question on the merits. Looked at an that way, the order now under consideration cannot properly be regarded as an order refusing to set aside the sale; for, had the petitioner applied for restoration of his application and shown good reason for his absence, this order would have provided no obstacle to the subsequent decision of his application on the merits. It is not, therefore, an order refusing to set aside the sale even though in certain circumstances such as those which have now arisen it may bar a future application for the same relief.
3. In this view I dismiss the second appeal with costs-two sets to be divided amongst the respondents. (Leave is refused).