1. This appeal is directed against an order whereby the Court below has refused to set aside an order of dismissal of an appeal for default. A preliminary objection has been taken to the competence of the appeal.
2. The suit was instituted under Section 106 of the Bengal Tenancy Act and was dismissed by the Court of first instance. An appeal was thereupon preferred to the Special Judge under Sub-section 2 of Section 109 A. When the appeal was taken up for disposal, neither the appellant nor his Pleader appeared and it was consequently dismissed for default. An application was thereupon made to re-hear the appeal. That application has been refused and the present appeal is directed against this last order. On behalf of the respondent, it is contended that the appeal is incompetent and reliance is placed upon the decision of this Court in Mothur Chandra Majumdar v. Tara Sunkar Ghose 7 C. W. N. 440. In our opinion, that case is clearly distinguishable and has no application to the circumstances of this appeal. There, an order of remand was made in an appeal preferred under Section 109A, against the decision in a suit under Section 106. An appeal was thereupon preferred to this Court against the order of remand. A preliminary objection was taken that the appeal was incompetent and this contention prevailed. Mr. Justice Banerjee observed that an appeal lay to the High Court from an appellate decision of the Special Judge, only under Chapter XLII of the Cede of Civil Procedure of 1882, which has now been replaced by Sections 100 to 103 of the Code of 1908. An appeal against the order of remand, if it lay at all, would lie to this Court not under Chapter XLII of the Code of 1882 but under Section 588 which found a place in Chapter XLIII of the Code. As Chapter XLIII was nowhere mentioned in Section 109A, the inference was drawn that an appeal did not lie to this Court from an order of remand made by a Special Judge in the exercise of his appellate powers under Sub-section 2 of Section 109A. In the present case Section 109A, Sub-section 2, made the provisions of the Civil Procedure Code relating to appeals applicable to the appeal before the Special Judge. One of these provisions is embodied in Order XLI, Rule 17, which provides as follows: Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. The Special Judge in the exercise of the power thus vested in him did dismiss the appeal. Thereupon Rule 19 became applicable. That Rule provides that where an appeal is dismissed under Rule 17, the appellant may apply to the Appellate Court for the re-admission of the appeal. This attracts the operation of Order XLIII, Rule 1, Clause (t), which provides that an appeal shall lie under the provisions of Section 104 from an order of refusal under Rule 19 of Order XLI to re-admit an appeal. No question arises as to the applicability of Chapter XLI I of the Code of 1882 or of the corresponding provisions of the Code of 1908, as under Section 2 of the latter Code, an order of dismissal for default is not a decree. There is no escape from the position that this appeal is competent under Order XLIII, Rule 1, Clause(t); in other words, an appeal lies from an order refusing to re-hear an appeal dismissed for default, even though such appeal has boon preferred under Section 109A, Sub-section 2, in a suit under Section 106 of the Bengal Tenancy Act.
3. As regards the merits, we are of opinion that this appeal should be allowed and the appeal preferred under Section 109A, which was dismissed for default, restored. This order, however, is made on terms. The appellant will pay to the respondent two gold mohurs as costs here and in the Court below. This sum must be deposited within one month of the arrival of the record in that Court. If the deposit is made, as directed, the appeal will stand restored and heard on the merits. If it is not so deposited, this appeal will stand dismissed with costs, one gold mohur.
4. It is conceded that this judgment will govern the other appeal (M. A. No. 201 of 1915). In that appeal, however, there will be no separate order for costs.