JUDGMENT I.B. Singh, Member. - This is a defendant's second appeal against judgment and decree dated August 12, 1976 passed by learned Additional Commissioner, Jhansi Division. Jhansi, allowing appeal No. 80/147 of 1975/76/Lalitpur setting aside order dated December 15, 1975 passed by S.D.O. Mahrauni district Lalitpur dismissing application dated September 8, 1975 supported with affidavit of the plaintiff for setting aside order of dismissal or the suit dated August 20, 1975 dismissed for default of the plaintiff although his brother-in-law Malkan Singh had moved application for adjournment on the ground that plaintiff was ill. That application was rejected on the ground that Malkhan Singh had no locus standi. 2. I have heard the learned counsel for the parties and have perused the record. 3. A preliminary objection has been raised that second appeal against order dated December 15, 1975 allowing restoration application was not maintainable due to bar of Section 104 of the C.P.C. 4. It has been argued in reply that special provision of Section 331(3) and (4) of Act I of 1951 providing appeal against order passed under order 43 rule 1(c) of the C.P.C. has been made appealable, therefore, this provision will prevail over the provision of Section 104 of the C.P.C. 5. Section 104 of the C.P.C. reads as follows:- Section 104. "Orders from which appeal lies-(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders- (a) to (f) Rep. by Arbitration Act, K of 1940 Section 49 and Sch. III; (ff) an order under Section 35-A; (ffa) an order under Section 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or Section 92, as the case may be; (g) an order under Section 95; (h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree; (i) any order made under rules from which an appeal is expressly allowed by rules; Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, for the payment of a less amount ought to have been made. (2) No appeal shall lie from any order passed in appeal under this section." 6. Section 331(3) and (4) of Act I of 1951 runs as follows:- Section 331(3). An appeal shall be from any decree or from an order passed under Section 47 or an order of the nature mentioned in Section 104 of the Code of Civil Procedure, 1908 or in Order XLIII, Rule 1, of the First Schedule, to that passed by a court mentioned in column No. 4 of Schedule II to this Act in proceedings mentioned in column No. 5 thereof. (4) A second appeal shall be on any of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 from the final order of decree, passed in an appeal under sub-section (3), to the authority, if any, mentioned against it in column 6 of the Schedule aforesaid." 7. Section 341 of Act I of 1951 runs as follows:- Section 341. "Application of certain Acts to the proceedings of this Act:-Unless otherwise expressly provided by or under this Act, the provisions of the Indian Court Fees Act, 1970, the Code of Civil Procedure, 1908, and the Limitation Act, 1968 including Section 5 thereof shall apply to the proceedings under this Act." 8. According to the provision of Section 341 the provision of Indian Court Fees Act, the Code of Civil Procedure and the Limitation Act are applicable unless otherwise expressly provided by or under this Act i.e. Act I of 1951. 9. Section 331(3) of the Act provides appeals against orders mentioned in order 43, Rule 1 of the C.P.C. and a second appeal is provided by sub-section (4) of Section 331 from final order or decree passed in an appeal under sub-section (3) to the authority if any mentioned against it in column six of the schedule aforesaid (Schedule II of the Act). 10. It is, therefore, clear after reading Section 331(3) and (4) of Act I of 1951 which are special provisions and have been provided otherwise expressly by or under this Act against the provisions of Section 104 of the C.P.C. and these special provisions will over-ride the general provision of Section 104(2) of the C.P.C. barring of Section 104(2) of the C.P.C. barring appeal from orders passed in appeal in view of the provisions of Section 341 of the Act. 11. 11. It is thus held that second appeal lies against the order passed in appeal against orders mentioned in order 43 Rule 1 of the C.P.C., under Section 331(4) of Act I of 1951 and the present second appeal, therefore, is maintainable. 12. It has been argued that the order passed by the trial court dated December 15, 1975 was highly justified and the order of the lower appellate court is highly unjustified and the application dated September 8, 1975 was wrongly allowed by the lower to the defendant-appellant meeting the application and affidavit filed by the plaintiff. 13. It has been argued in reply that the trial court did not consider the affidavit that plaintiff was ill on August 20, 1975 and the application for setting aside order of dismissal of that date was within time. 14. I agree with the opinion of the learned Additional Commissioner that the order dated December 15, 1975 passed by the trial court in dismissing application dated September 2, 1975 was highly unjustified because the trial court did not disbelieve the affidavit. The proper course would have been to give notice to the defendant for filing objection, then ought to have decided that application instead of doing so the trial court passed the order of dismissal in support of his previous order as the case was dismissed for default as Malkan Singh had no locus standi. 15. The order of the lower appellate court in allowing the appeal and setting aside order of dismissal of the application for setting aside order of dismissal of the suit is highly justified that the order allowing the application for setting aside order of dismissal was not justified because it deprived the defendant from filing objection and counter against application dated September 8, 1975 supported with affidavit. The defendant was not even given notice about it, therefore, this appeal is liable to be allowed partly and the order of allowing application for setting aside order of dismissal is liable to be set aside and the rest of the order of the lower appellate court is liable to be confirmed. 16. In view of the above, this appeal is partly allowed and the order passed by the lower appellate court setting aside order dated December 15, 1975 dismissing application dated September 8, 1975 is confirmed and the appeal is partly dismissed. 16. In view of the above, this appeal is partly allowed and the order passed by the lower appellate court setting aside order dated December 15, 1975 dismissing application dated September 8, 1975 is confirmed and the appeal is partly dismissed. The appeal is partly allowed and the order allowing application dated September 8, 1975 passed by the lower appellate court is set aside and the case is remanded to the trial court for deciding that application after giving opportunity to the defendants for filing objection and counter against that application and affidavit in support of it. The parties shall appear in the trial court on October 19, 1983. The trial court's file shall be sent to it at once to reach before the dated fixed.