Somayya, J - (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 25 July, 1941, by I. A. No. 474 of 1941. This application was dismissed for default by an order dated 1 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 1 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 1 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 1 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/s. Mahardjadhiraj Sir Rameshwar Singh Bahadur (1928) I.L.R. 7 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.