Agarwala, J. - (1.) THIS is an application in revision and has arisen under the following circumstances :
(2.) THE applicants made an application for the setting aside of an award under Section 33, Arbitration Act, and the application was allowed 'ex parte' because the opposite-parties were not present. Later on the 'ex parte' order was set aside and a fresh date for final hearing was fixed. Several adjournments of the date fixed for hearing were made at the instance of the applicants and the last date so fixed was 19-5-1947. On this date also, the applicants were absent while the opposite parties were present and the Court passed the following order: "THE plffs. are absent, the defts. are present ready to proceed. This was a date which was fixed for hearing after the plffs. had already sought an adjournment. Hence the suit decided under Order 17, Rule 3, Civil P. C.; Order. THE suit be dismissed with costs." The plffs. then applied to the Court for setting aside the 'ex parte' order passed on 19-5-1947. The Court rejected this application on the ground that the order of the 19th May was an order passed under Order 17, Rule 3, Civ. P. C. and could not be set aside by him. The applicants then filed an appeal in the lower appellate Court against the dismissal of their application for restoration. The lower appellate Court considered that though the trial Court's order of 195- 1947, was a dismissal for default and not a dismissal on merits yet because no appeal is provided against the dismissal of the application for restoration under the provisions of the Arbitration Act the appeal was incompetent. It, therefore, dismissed the appeal. The present application in revision is directed against this order.
(3.) IT has been urged that the view of the lower appellate Court that no appeal lay to that Court against an order dismissing an application for restoration made under Order IX, Rule 9, Civ. P. C. was erroneous. We think that this contention is sound. Section 41 of the Arbitration Act makes the provisions of the Code of Civil Procedure applicable to all proceedings before the Court, but "subject to the provisions of the Act and of Rules made thereunder.";