1. The facts are these. Respondent's suit was dismissed for default. He applied to have it restored under Order IX, Schedule I. C. P. C, and that application also was dismissed for default. He then applied again under Order IX to have the application restored and it was restored. The other party comes up in revision en the ground that the provisions of Order IX, do not govern applications made under the order itself.
2. Authority on the point is divided. The' Calcutta High Court has held one way [Bepin Behari Saha v. Abdul Barik 35 Ind. Cas. 613 : 44 C. 950 : 21 C.W.N. 30 : 24 CRI.L.J. 446] the Patna High Court the other [Ramgulam Singh v. Sheo Deonarain Singh 51 Ind. Cas. 152 : 4 P.L.J. 287] Phillips, J., in a case exactly parallel to this has recently followed the Calcutta view [Venkata Narasimha Rao v. Hemadu Suryanarayana 92 Ind. Cas. 802 : 50 M.L.J. 75]. In Kalliakkal v. Palani Koundan 92 Ind. Cas. 533 : 23 L.W. 227, Devadoss, J., and I held that Order IX, does not apply to proceedings in execution of decrees. It is now argued that we stated the proposition too widely, in other words, that all that was laid down in Thakur Prasad v. Fakir Ullah 17 A. 106 : 5 M.L.J. 3 : 22 I.A. 44 : 6 Sar. P.C.J. 526 : 8 Ind. Dec. 393 was that Order IX did not apply to execution petitions. If, however, it does not apply to the petitions themselves, it is difficult to see how it can apply to applications incidental to and arising out of them.
3. What we are now considering is a different point. No doubt, the Privy Council decision is open to a limited construction, but what obviously was intended to be excluded by the Legislature from the operation of Section 141, C. P. C, was any proceeding in a suit. This is shown by the explanation added to Section 647 by Act VI of 1892. As pointed out by Phillips, J., the proceeding we are dealing with is not a proceeding in a suit, for the suit has been dismissed. I would follow his decision and dismiss the petition with costs.
Madhavan Nair, J.
4. The decision of Phillips, J., in Venkata Narasimha Rao v. Hemadu Suryanarayana 92 Ind. Cas. 802 : 50 M.L.J. 75 on identical facts covers the present case. I also would follow that decision and dismiss this petition with costs.