1. This is an application for leave to appeal to His Majesty in Council against an order of this Court by which a decree of dismissal of a suit for default has been set aside and a trial of the case on the merits directed.
2. The question before us is whether this order is a final order within the meaning of Section 109 of the Code of Civil Procedure. On behalf of the respondents it has been contended that it is not a final order and reliance has been placed on the case of Krishna Chandra Ghosh v. Maharaja Ram Narain Singh Bahadur 21 Ind. Cas. 430 : 18 C.L.J. 124. That case is clearly distinguishable. There the original Court had dismissed the suit as premature because brought during the pendency of settlement proceedings; the decree of that Court, however, did not finally terminate the controversy between the parties, but left it open to the plaintiff to on force his rights, if any, in a, fresh suit. This Court on appeal took a different view and directed the suit to be evived and to be tried on the merits after the settlement proceedings had terminated. In the present case, the dismissal of the suit for default under Order IX, Rule 8, finally ended the controversy between the parties, as under Order IX, Rule 9, the plaintiff was precluded from bringing a fresh suit in respect of the same cause of action. His only remedy was to have the dismissal set aside under Order IX, Rule 9, but his application in that behalf was unsuccessful. On appeal to this Court, under Order XLIII, Rule 1(c), that order has been set aside. The order of this Court sets aside the final decree of the original Court which was in favour of the appellant. Before, the decree was set aside, he was in the position that the litigation against him had finally terminated. The position now is, that he has been deprived of the benefit of the final decree and the suit as against him is to be tried.
3. An order which has this effect may, we think, be regarded as a final order within the meaning of Section 109 of the Code. This conclusion receives some support from the observations in Radha Kishan v. Collector of Jaunpur 28 : 23 A. 220 : 5 C.W.N. 153 where the Judicial Committee held that an order merely reviving a proceeding to set aside an v. ex parte decree under Section 108 of the Code of 1882, and not actually granting the application made for that purpose, was not a final order. The view we take is in no way opposed to the decisions in Muzhar Hossein v. Bodha Bibi 22 I.A. 1 : 112 : 5 M.L.J. 20 : Sar. P.C.J. 580 and Rahimbhoy v. Turner 18 I.A. 6 : 15 B. 155. We hold accordingly that the order in question is a final order, and as it is not disputed that the value of the subject-matter is over Rs. 10.003, It certificate will be granted.