Law: Civil Procedure Code (V of 1908)

Section: 141

Civil Procedure Code (v of 1908), S. 141 read with O. IX, r. 9 & O. XLIII, r. 1(c)-Appeal-Provisions of S. 141 govern only procedural matters and do not apply to a sub stantive right, such as appeal-Order rejecting petition for restoration of a dismissed "application" under O. IX, r. 9-Aid of S. 141, held, cannot be invoked to make such order appealable. Application under section 24(1) of the Bengal Non-Agricul tural Tenancy Act for pre-emption was dismissed for default. Appeal against such order was dismissed as not maintainable. It was contended before the High Court that section 141 of the Civil Procedure Code, 1908 would apply to such an order and as such an appeal would lie against an order of dismissal of a petition for restoration of an application: Held, a bare reading of section 141, C. P. C. would make it clear that the provision made therein is in regard to procedural matters. The procedure provided In the Code in regard to the suit shall be applicable to all proceedings in any Court of civil jurisdiction. The word "procedure" occurring in this section makes the position clear. The procedure relating to an order in a suit would apply to other proceedings also in matters of procedure. But this section will have no application in regard to a matter relating to a substantive right, such as a right of appeal which is conferred by a law. In Order IX, rule 9 of the Code it is provided that there may be an applica tion for restoration of a suit dismissed for default. This is a procedural matter and as such the rule cannot have the effect of conferring a substantive right of appeal. In the absence of there being any provision of appeal against an order of rejection of a petition for restoration of the dismissed "application", the aid of section 141 of the Code cannot be invoked for filing an appeal. Unless the petitioner can bring his appeal within clause (c) of rule 1 of Order XLIII he cannot claim that the appeal is main tainable. Haji Muhammad Jayan and another v. Raju Pramanik and others 53 C W N 1 D R 61 and Birendra Nath Biswas v. Mono rama Devi and others A I R 1948 Cal. 77 rel. JUDGMENT A. S. CHOWDHURY, J.-This…