D. K. SETH, J. Original Suit No. 349 of 1982 was filed for declaration that lease deed dated 21-9-1991 executed by Sri Jamuna Prasad in favour of the defendant Nos. 1 and 2, is null and void. The said suit was dismissed in default by an order dated 21-5-1984. An application under Order 9, Rule 9 of the Code of Civil Procedure (hereinafter referred to as the Code), was filed by the plaintiff, which was registered as Misc. Case No. 16 of 1984. The said application was allowed by an order dated 13-11- 1984. Thereafter the suit was decreed ex pane on 7-1- 1986. An appeal against ex pane decree was filed by the trustees who were- defendants. The said appeal being First Appeal No. 98 of 1986 was ultimately dismissed by this Court by an order dated 5-7-1994. The petitioner in the present writ petition has filed an ap plication under Order 9, Rule 13 of the Code of 2-1- 1996. The said application was registered as Misc. Case NO. 2 of 1996, the said Misc. application was allowed by the learned Trial Court by an order dated 28th June, 1996. The said order was chal lenged in Civil Revision No. 99 of 1996. This Civil Revision was allowed by setting aside the order dt. 28th June, 1996 passed by the learned Trial Court which allowed the application under Order 9, Rule 13 of the Code. This order dated 27th May, 1998 passed in Civil Revision No. 99 of 1996, dismissing the petitioners application under Order 9, Rule 13 has since been challenged in the present writ petition. 2. Sri Ravi Kant, learned Counsel for the petitioner contends that though sum mons of the suit were served on the petitioner but after the suit was dismissed in default and it was restored under Order 9, Rule 9 of the Code, fresh summons ought to have been served upon the petitioner. Since no fresh summons were served upon the petitioner after restoration of the suit, there was no service of summon, therefore the case falls within the scope of Order 9, Rule 13 of the Code, for the purposes of setting aside such an ex pane decree, which was passed without any notice to the petitioner. 3. Since no fresh summons were served upon the petitioner after restoration of the suit, there was no service of summon, therefore the case falls within the scope of Order 9, Rule 13 of the Code, for the purposes of setting aside such an ex pane decree, which was passed without any notice to the petitioner. 3. Sri Manish Nigam, learned Coun sel holding brief of Sri Janardan Sahai, on the other hand submits that after the First appeal against ex. pane decree was dis missed in 1994 it is not more open to the petitioner to file an application under Order 9, Rule 13 of the Code in view of explanation contained in Rule 13 of Order 9. Then again the petitioner happened to be treasurar, while the appeal has been preferred by the trustees who were lessees and the Treasurar does not have any inter est more than that what the trustees do have. Therefore, he cannot espouse the. cause after the trustee has become unsuc cessful in appeal. 4. Sri Ravi Kant, then submits that. the appeal was dismissed on account of non-payment of Court fees. Therefore, ex planation contained under Order 9, Rule 13 cannot be attracted since the petitioner was not the appellant. 5. I have heard learned Counsel for both the parties at length. 6. The question that falls for deter mination in the present case is the scope of Order 9, Rule 13 of the Code. The said scope has to be determined on the basis of facts and circumstances of the present case. So far as the question that fresh sum mons are to be issued to the defendants , after the suit is restored under Order 9, Rule 9 of the Code, is concerned, it does not appear that the contention of Mr. Ravi Kant stands on sound footing. In as much as summons of the suit were admittedly served on the petitioner before the suit was dismissed in default, i. e. before application under Order 9, Rule 9 of the Code was filed. It is also not disputed that notice of the application under Order 9, Rule 9 was also served on the petitioner. In as much as summons of the suit were admittedly served on the petitioner before the suit was dismissed in default, i. e. before application under Order 9, Rule 9 of the Code was filed. It is also not disputed that notice of the application under Order 9, Rule 9 was also served on the petitioner. Thus the petitioner had notice of suit by virtue of summons served upon him before the suit was dismissed in default and then he had notice of the application for restoration under Order 9, Rule 9, after the said ap plication under Order 9, Rule 9 was filed. Thus the petitioner had notice of pendency of the suit. Therefore, the petitioner had knowledge of the suit. The revisional Court has come to the conclusion on the finding of fact that the petitioner had knowledge of the suit and therefore his case does not satisfy the test laid down in Rule 13 of the Code. I do not find any reason to take a different view than that what has been arrived at by the revisional Court. Though Sri Ravi Kant sought to point out that the order suffers from per versity, but he has not been able to point out how the order is perverse nor I have been able to find any perversity therein. 7. So far as the finding that the petitioner had knowledge of the suit, it appears, that the petitioner had waited till the appeal preferred by the trustee was dismissed in 1994. Ex-parte decree was passed sometimes in 1984. The appeal was dismissed in 1994, but the petitioner had come to know only in 1996 and that too being a Treasurer. Therefore the finding that he had sufficient knowledge, cannot be assailed at this stage. Order 9, Rule 13 of the Code provides as follows: "13. Ex-parte decree was passed sometimes in 1984. The appeal was dismissed in 1994, but the petitioner had come to know only in 1996 and that too being a Treasurer. Therefore the finding that he had sufficient knowledge, cannot be assailed at this stage. Order 9, Rule 13 of the Code provides as follows: "13. Setting aside decree ex pane against defendant.-In any case in which a decree is passed ex pane against a defendant, he may apply to the Court by which the decree was passed for an order to set it arise ; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: Provided further that no Court shall set aside a decree passed ex pane merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim. Explanation.-Where there has been an appeal against a decree passed exparte under this Rule, and the appeal has been disposed of on any ground other than the ground that the ap pellant has withdrawn the appeal, no application lie under this rule for setting aside that exparte decree. " A plain reading of the said Rules shows that a defendant may apply for set ting aside ex. pane decree on the ground that summons were not duly served or that he was prevented for sufficient cause from appearing in the suit. But irregularity in service of summons could not be very material if the Court is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim. In the present case the suit was instituted in 1982. Admit tedly the notice was served on the petitioner. But irregularity in service of summons could not be very material if the Court is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim. In the present case the suit was instituted in 1982. Admit tedly the notice was served on the petitioner. The suit was dismissed under Order 9, Rule 8 of the Code. Therefore, the defendant had notice of the suit. Once the defendant had appeared in the suit, the provisions of Order 5 are no more ap plicable. Provisions of Order 5 are meant for issuing summons to defendants so that the defendants might have notice of the suit. 8. Order 5, Rule 1 of the Code provides for issue of summons to the defendant to appear and answer the claim. ". . . . . . " when a suit has been duly instituted. "thus a summon is required to be issued on due institution of the suit. Due institution means the presentation of the plaint to the Court or the Officer appointed by it for the purpose as provided in Order 4, after com pleting all formalities referred to in Order 6 and 7 so far applicable and on being so presented the suit is entered in the register of civil suits against entry number of the year. Order 5 which follows Order 4 be comes applicable on the due institution of suit as aforesaid. Order 5 cannot be at tracted and applied once completed or complied with, at a stage subsequent thereafter. The purpose of Order 5 is over as soon the defendant appears. Once the defendant appears there is nothing in the Code which provides issue of summons at any stage upon such defendant thereafter. Rule 1, sub-rule (2) of Order 5 makes the position clear. Inasmuch as the defendant, to whom summon is issued under sub-rule (1), may appear either (a) in person, or (b) through a pleader duly instructed to answer all material questions relating to the suit, or (c) through a pleader accompanied by a person capable of answering all such questions. 9. Thus Order 5 occupies the field at the stage of due institution of the suit and is over when the summons have been served within the meaning of respective provisions of Rules 9 to 30 thereof, as the case may be. 9. Thus Order 5 occupies the field at the stage of due institution of the suit and is over when the summons have been served within the meaning of respective provisions of Rules 9 to 30 thereof, as the case may be. Its application cannot be borrowed or stretched to any stage sub sequent thereafter. How and in what man ner Order 5 is to be resorted to after the institution of suit has been prescribed in Order 9, Rules 2, 5 and 6. The code is a complete Code in itself. It provides for due complete procedure to be followed in Civil Courts. The code has provided ap propriate provisions at different stages. One provision of one stage does not over lap the provision made for the other stage. Neither one provision meant for a par ticular stage can substitute the process of another provision meant for that par ticular stage, unless expressly provided in the Code. 10. Once the stage of Order 5 is over the field is taken over by Order 9, Rules 7 to 13. Order 9 has provided for covering dif ferent situation relating to appearance of parties and consequence of non- ap pearance of parties. Summons under Order 5 are issued for appearance of the defendant. Once summons are issued to the defendant he becomes subjected to Order 9, Rules 7 to 13 and the consequen ces provided therein that might follow ap pearance of one or the other party or non- appearance of one or the other as the case maybe. 11. Order 9, Rule 1 requires ap pearance of the defendant on the date fixed and that the suit maybe then heard unless the hearing is adjourned. It does not make any provision for issue of fresh summons at any stage when the hearing is adjourned to a future date fixed. 12. Under Rule 2, Order 9, the suit may be dismissed if no steps for issue of summons is taken by the plaintiff. Order 3 empowers the Court to dismiss the suit if neither of the parties appear. In such a case under Rule 4 the plaintiff may either bring, subject to limitation, a fresh suit or may apply for restoration of the suit. If suit is restored the Court will appoint a date for proceeding with the suit. Order 3 empowers the Court to dismiss the suit if neither of the parties appear. In such a case under Rule 4 the plaintiff may either bring, subject to limitation, a fresh suit or may apply for restoration of the suit. If suit is restored the Court will appoint a date for proceeding with the suit. The Court under Rule 5 may dismiss a suit on the failure of the plaintiff to take steps for issue of fresh summons within 3 months for any one or all the defendants unserved. In such case also the plaintiff may either, subject to limitation, bring fresh suit or apply for extension of time for such taking of steps. Under Rule 6, sub-rule (1) when the defen dant does not appear and the plaintiff ap pears the Court may (a) direct the suit to be heard ex pane if it is proved that the sum mons was duly served; (b) direct second summons be issued and served on the defendant if it is not proved that summons were duly served; (c) postpone the hearing of the suit to a future date and direct notice of such day be given to the defendant when it is proved that summons was served but the time was insufficient to enable him to appear and answer on the day fixed in the summons. In the case covered by clause (b) and (c) above the Court may order the plaintiff to pay cost occasioned by postponement if summons were not duly served or served without sufficient time due to default of the plaintiff under sub-rule (2 ). Under Rule 7 on or before the day fixed for ex pane hearing, in terms of Rule 6 (l) (a) if the defendant appears and as signs good cause for his previous non-ap pearance, the Court may direct hearing of the suit, as if he had appeared on the day fixed for appearance, subject to such terms the Court may direct. 13. Thus it appears that Order 9 is a complete code for the situations envisaged by different rules as discussed above. It provides for notice or summons, as the case may be, in a given situation covered by- different rules. 13. Thus it appears that Order 9 is a complete code for the situations envisaged by different rules as discussed above. It provides for notice or summons, as the case may be, in a given situation covered by- different rules. Therefore, it cannot be contended de hors the said provisions that summons are to be issued in a case or situation covered by a particular rule which does not prescribe for issue of sum mons. The provisions are so explicit and specific that nothing can be introduced in any of those provisions to read otherwise. Since each of the rules makes express provision either of notice or summons it cannot be interpreted to mean that by implication it provides for summons. 14. In the present case we are con cerned with a situation covered under Rules 8 and 9 of Order 9 respectively. Now, therefore, let us examine the scope and ambit of Rules 8 and 9of Order 9. 15. Rule 8 prescribes that the Court may dismiss the suit where the defendant appears but the plaintiff does not, unless the defendant admits the claim or part thereof. In a case where defendant admits the claim Court shall pass a decree in whole or part, as the case may be, upon such admission, against that defendant, dismiss the same so far as it relates to the remainder, if any. 16. Rule 9 provides in sub-rule (1) that the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action where a suit has been dis missed in whole or in part. But he may apply for setting aside the order of dismiss al. If the plaintiff satisfied the Court that there were sufficient cause for his non-ap pearance, the Court may set aside the dis missal, appoint a day for proceeding with the suit. 17. Since upon dismissal of suit under Order 8 a fresh suit is barred, restoration thereof does not make the suit a fresh suit. Or in other words it cannot be treated to be a freshly instituted suit from the date of restoration. By no stretch of imagination it can be said that restoration of suit is in stitution of suit within the meaning of Order 4. It does not amount to setting the clock back. It does not amount to reversal of process. Or in other words it cannot be treated to be a freshly instituted suit from the date of restoration. By no stretch of imagination it can be said that restoration of suit is in stitution of suit within the meaning of Order 4. It does not amount to setting the clock back. It does not amount to reversal of process. It does not wipe out the pre vious process. It does not put the parties at the stage of Rule 4 followed by Rule 5. The. restoration amounts to restoration of the suit at the stage immediately proceeding the order of dismissal: The expression "shall appoint a day for proceeding with the suit clearly express the intent of the legislation. It pre-supposes proceeding of the suit from the stage when it was dis missed. " 18. Rule 9, sub-rule (1) no where provides that fresh summons are to be issued. By reason of the express provision for notice contained in sub-rule (2) the scope or necessity of issue of summons or resorting to Rule 5 is precluded. If it was intended by the legislature that fresh sum mons is to be issued after such restoration in that event it would have used the express provision as has been used in Rules 5 and 6. 19. The omission of provision for issue of summons and incorporation of sub-rule (2) in Rule 9 is deliberate legislative intent. Inasmuch as if once again Order 5, is resorted to in that event it would open up repetition of the same ac tion or procedure once again hindering the progress of the suit and unnecessarily in viting burden on the Court and its office and thus creating an unending circuituous rotating impenetrable labyrynth of whirlpool, from which it would have been impossible to extricate or resurrect a suit to its end unnecessarily proliferring the procedural quagmire. These are the ob vious reason why the legislature, in its wisdom had committed the provision for issue of summons under Rule 9 and had provided for notice of the application, which by implication excludes issue of summons. 20. If the contention of Mr. Ravi Kant is acceded to then it would be necessary to add phrase that "and after the suit is res tored fresh summons are to be issued to the defendant. " The Court can interpret. It cannot venture to the sphere of legislation. 20. If the contention of Mr. Ravi Kant is acceded to then it would be necessary to add phrase that "and after the suit is res tored fresh summons are to be issued to the defendant. " The Court can interpret. It cannot venture to the sphere of legislation. Unless the above phrase is read in Rule 9 (2) it is not possible to accede to the contention of Mr. Ravi Kant. The Court. cannot add anything which the legislature had committed to incorporate. If it is so read the Court would be adding words to the legislation and thus travel to the domain of legislation. The Court cannot legislate while interpreting a legislation. The Court cannot do indirectly what it cannot do directly. 21. Now in the light of the above observation now let us examine the scope and ambit of sub-rule (2) of Rule 9, having regard to the facts and circumstances of the case. 22. Order 9, Rule 9 (2) provides that "no order shall be made under this rule unless notice of the application has been served on the opposite party. " In the present case notice was served upon the opposite party which is an admitted posi tion. When allowing the application under Order 9, Rule 9, the Court shall appoint a day for proceeding with the suit. In the present case, the suit was dismissed in default in May, 1984 and Misc. Case No. 16 of 1984 under Order 9, Rule 9 was allowed by order dated 13-11-1984. 23. The defendant having notice of the application under Order 9, Rule 9 he was supposed to appear and having ap peared in the suit he was supposed to keep track of it. It is not alleged that the defen dant had been appearing in person. He had engaged a Counsel. This fact is not dis puted. It is no more necessary to take steps for fresh service of summons and once again resort to the procedure con templated in Order 5. Order 5 of the Code is not attracted every time the suit is res tored except as provided in different provisions of Order 9. If such a situation is contemplated in that event the proceed ings will never come to an end. The proce dure is handmaid of justice. It cannot be utilised only for the technical purpose. Order 5 of the Code is not attracted every time the suit is res tored except as provided in different provisions of Order 9. If such a situation is contemplated in that event the proceed ings will never come to an end. The proce dure is handmaid of justice. It cannot be utilised only for the technical purpose. When the defendant had knowledge of the. suit which was dismissed under Order 9, Rule 8 on the ground that though the defendant had appeared but the plaintiff failed to appear. Therefore, he had notice and knowledge of the dismissal of the suit. The moment notice of the application under Order 9, Rule 9 was served on the defendant, the cannot plead that he would again be served with summons of the suit and the procedure laid down in Order 5 will be resorted to because he had deliberately chosen not to appear when the application under Order 9, Rule 9 of the Code was decided. This would open up a scope for all the defendants to take ad vantage of such a situation by not appear ing in the proceeding under Order 9, Rule 9 and thereafter insisting on compliance of provisions of Order 5 and thereby delaying the whole process. 24. The express provision contained in Order 9, Rule 9 of the Code provides that the application should be decided upon notice on the defendant and that when the dismissal of the suit is set aside, the Court will appoint a day for proceeding with the suit. This very provision excludes the application of Order 5 once again. Since by express provision in Rule 9 (1) of Order 9, the Court has to appoint a day proceeding with the suit there cannot be any scope for interpreting such provisions to mean that the day should be appointed only after exhausing the procedure laid down under Rule 5 for effecting service of summons of the suit afresh. If it was the intention that service of summons of the suit would be necessary after restoration in that event the express provision empowering the Court to appoint a day for proceed ing with the suit would not have been included. The very inclusion of such an expression, it expressly precludes the ap plication of Rule 5 in that for effecting fresh service of summons on the defendant after exparte order is set aside. The very inclusion of such an expression, it expressly precludes the ap plication of Rule 5 in that for effecting fresh service of summons on the defendant after exparte order is set aside. 25. Then again the second provision of Rule 13 or Order 9 provides that ir regularity in the service of summons would not be a ground for setting aside the ex pane decree if the defendant had knowledge and had sufficient time to ap pear and answer the plaintiffs claim. In the present case, the defendant had knowledge of the suit as well as of the application under Order 9, Rule 9 of the Code. The suit having decreed ex pane long after one year one month, therefore, there was sufficient time for the defendant to appear and find out the date of hearing. The defendant does not appear to be diligent. On the other hand he relied upon and insisted that after restoration of the suit fresh summons should be served on him. Such a ground is wholly miscon ceived. 26. Thus it is not possible to agree with the contention of Mr. Ravi Kant, learned Counsel for the petitioner that summons were required to be issued afresh after the order of dismissal of the suit was set aside. 27. Now we may examine the conten tion of Mr. Nigam, that an appeal having been preferred and the same having not-been withdrawn, by virtue of provision contained in Rule 13, the present applica tion is not maintainable. 28. Explanation to Rule 13, Order 9 provides that if the appeal preferred against ex pane decree is disposed of on any ground other than the ground that the appellant has withdrawn, the appeal, in that event, no application under Rule 13 would lie. 29. In order to maintain an applica tion under Order 9, Rule 13, where an. appeal has been filed, the only ground available is where the appeal has been withdrawn by the appellant. The dismissal of the appeal for default-either on account of non- appearance or of non-payment of Court fee or on any other ground cannot be treated to be an withdrawal of the appeal. The dismissal of an appeal for non payment of Court fee is in effect rejection of the memorandum of appeal, within the meaning of Rule3of Order41. 30. The dismissal of the appeal for default-either on account of non- appearance or of non-payment of Court fee or on any other ground cannot be treated to be an withdrawal of the appeal. The dismissal of an appeal for non payment of Court fee is in effect rejection of the memorandum of appeal, within the meaning of Rule3of Order41. 30. The appeal Courts power to reject a memorandum of appeal is contained in Order 41, Rule 3 of the Code. Apart from the said provision Order 41 has not provided any other provision for rejection of a memorandum of appeal, though it had provided for dismissal of the appeal under Rules 11 (2) 17 or 18 the orders whereof are capable of being recalled under Rule 19. 31. Rule 3, Order 41 empowers the Court to reject the memorandum of ap peal where the same is not drawn up in the manner prescribed in Rule 1 or it may return the same to the appellant for the purpose of being amended then and there within such time as may be fixed by the Court. This provision does not postulate rejection of plaint for non-payment of Court fees. Inasmuch as Rule 1 which prescribes the form does not indicate that the memo is to be drawn on stamp paper. Rules 1 and 3 are to be read together for interpreting the same in order to decide whether it empowers the Court to reject a memorandum of appeal on account of non-payment of Court-fees. 32. Rule 1 does not speak anything about Court fees. It does not prescribe that memo has to be drawn on sufficient stamp paper. At the same time Rule 3 also does not envisage rejection or return of memorandum of appeal on account of its being insufficiently stamped. A combined reading of these two rules does not show that these provisions empowers the Court to reject the memorandum of appeal on account of non-payment of Court fees. 33. No where in any rule under Order 41 prescribes that the memorandum of appeal requires to be sufficiently stamped or in default it is to be rejected or dis missed. Thus the rejection of a memo of appeal has a characteristics different from that of the rejection of it under Rule 3. 34. 33. No where in any rule under Order 41 prescribes that the memorandum of appeal requires to be sufficiently stamped or in default it is to be rejected or dis missed. Thus the rejection of a memo of appeal has a characteristics different from that of the rejection of it under Rule 3. 34. The power to reject insufficiently stamped memo of appeal flows from Order 7, Rule 11 of the Code in the same manner as the original jurisdiction in respect of suits by reason of Section 107, sub-section (2) of the Code. Section 107 (1) provides the power of the appeal Court. The procedure for exercising those powers have been provided in Order 41. There might be situations which may not be covered by the provisions contained in Order 41. The legislature, therefore, in order to obviate such situation, em powered the appeal Court under sub-sec tion (2) of Section 107 that subject to sub-section (1) (or in other words Order 41) it "shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein. " 35. Thus the expression "as nearly as may be" makes the provisions relating to institution and entertainment of suits would apply mutatis mutandis to a memo of appeal. except to the extent and subject to such provisions as are provided in Order 41. When there are any field or situation which is not covered by O. 41, the provi sions relating to suits, where there would be no inconstency, would apply in respect of memo appeal as nearly as possible. 36. Admittedly the field covering a situation relating to presentation of a memo of appeal insufficiently stamped is not provided for in Order 41 as discussed. above. Therefore, the Court has to fall back on Order 7, Rule ll (c) which deals with such filed or situation in relation to suits. There being nothing inconsistent in Order 41 in relation to Order 7, Rule 11 (c), the said provision will be applicable as nearly as possible in respect of memo of appeal falling within the situation covered by it. In the absence of any provision cover ing such situation in Order 41, there is no scope of inconsistency or conflict. There being nothing inconsistent in Order 41 in relation to Order 7, Rule 11 (c), the said provision will be applicable as nearly as possible in respect of memo of appeal falling within the situation covered by it. In the absence of any provision cover ing such situation in Order 41, there is no scope of inconsistency or conflict. There fore, there is nothing in Order 41 by reason where of the application of Order 7, Rule H (c) as nearly as may be, in a situation covered thereby, in relation to a memo of appeal, can be excluded or excepted. 37. In the case of Union of India v. Sardar Bahadur, 1972 Lab I. C. 627 at 631: 1972 (2) SCR 218 , the Apex Court has held that in an appeal unless the relevant statute restricts the power of the appellate. Court, it as a general rule has the same power as are conferred on the original authority from whose decision the appeal is brought. In the case Pt. Amba Shankar v. Mt. Seoti, AIR 1937 Alld 280, while dealing with Section 107 it was held that Section 107 (2) makes the provision relating to the rejection of plaints applicable to memorandum of appeal. The same view was taken by the Calcutta High Court in the case of Abdul Majid Mridha v. Amina Khatun, AIR 1942 Cal 539. The same view was also taken by the Bombay High Court in the case of Kashiram Sanu Chaudhuri v. Rang Lal Motilal Shet Marwadi, AIR 1941 Bombay 242. 38. Now let us examine what would be the effect of rejection of a memo of appeal. Rejection of a plaint is a decree within the meaning of Section 2 (2) of the Code. Ap plying the test as observed earlier by reason of Section 107 (2) of the Code rejec tion of a memo of appeal under Order 7, Rule 11 (c) cannot import a consequence different from that of a similar order relat ing to a plaint. 39. In the case of Jnandasundari Shaha v. Madhabchandra Mala, ILR1931 Cal 388, it was held that rejection of memorandum of appeal, written on paper insufficiently stamped, for non-payment of the deficit Court fee within the time allowed by the Court, is not a decree within the meaning of Section 2 of the Code of Civil Procedure. 39. In the case of Jnandasundari Shaha v. Madhabchandra Mala, ILR1931 Cal 388, it was held that rejection of memorandum of appeal, written on paper insufficiently stamped, for non-payment of the deficit Court fee within the time allowed by the Court, is not a decree within the meaning of Section 2 of the Code of Civil Procedure. The rejection of a memorandum of appeal by the appellate Court shall not, of its own force, preclude the appellant from presenting a fresh memorandum on proper Court fee. In the said case Honble Suhrawardy. J. , as His Lordship then was, had observed that "i find it difficult to accede to this view of the law" in the background of the contention that by reason of Section 107 (2), the provisions of Order 7, Rule 7 is attracted when a memorandum, of appeal is rejected and thus the order rejecting the memoran dum of the appeal is a decree as defined in Section 2 (2 ). ^ But ultimately His Lordship had observed that "it is not necessary to go into this matter, further, because, in view of the provisions of Section 107 (2) an ap pellate Court is invested with all the powers of an original Court and has, ac cordingly, the same powers as are conferred upon an original Court under Order VII, Rule 13, which says that the rejection of a plaint shall not preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. Applying this provision mutatis mutandis to the case of appeals the rejection of a memorandum of appeal by the appellate Court shall not, of its own force, preclude the appellant from presenting a fresh memorandum on proper Court- fee. " 40. It seems that the above reasoning contradicts the earlier reasoning that Sec tion 107 (2) does not purport to give the order passed by the appellate Court the. same effect as an order passed by the original Court of a like nature. Section 2 expressly says that a decree shall deemed to include a rejection of the plaint. The reasoning that if it was the intention of legislature to include within the definition of decree and order rejecting a memoran dum of appeal, it would have expressly said so does not appear to be sound. Section 2 expressly says that a decree shall deemed to include a rejection of the plaint. The reasoning that if it was the intention of legislature to include within the definition of decree and order rejecting a memoran dum of appeal, it would have expressly said so does not appear to be sound. In as much as despite Order 7, Rule 13 rejection of a plaint under Order 7, Rule 11 is a decree within the definition given in Section 2 (2 ). Now Section 107 (2) makes the provision of Order 7, Rule 11 applicable in an ap peal. The definition of decree as defined is the decree that is passed in the suit. The definition has not included the appeal. The decision on the memorandum of ap peal is admittedly a decree. The definition in Section 2 (2) prescribe of decree as the "formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. . . . . . ". Having regard to the definition which was given in relation to suit, the rejection of a plaint has been included. If the conclusive deter mination of the rights of the parties in the appeal could be a decree applying the definition of Section 2 (2) without any ref erence to the appeal in the said definition to that event it is not necessary to include memorandum of appeal while expressing rejection of a plaint as a decree. The said definition of a decree is applied in appeal by virtue of application of Section 107 (2 ). Order 41 in Rule 33 empowers the appel late Court to pass any decree. The decree has not been defined in Order 41. The decree that is passed in appeal is a decree as defined in Section 2 (2) which defines conclusive determination of the right of the parties in a suit. If by virtue of Rule 33 of me definition of decree can be adopted as meaning of decree in appeal formally expressing the conclusive adjudication of the rights of the parties in appeal though it is so defined in Section 2 (2), on the same analogy, the rejection of the memorandum of appeal would also be a decree. 41. If by virtue of Rule 33 of me definition of decree can be adopted as meaning of decree in appeal formally expressing the conclusive adjudication of the rights of the parties in appeal though it is so defined in Section 2 (2), on the same analogy, the rejection of the memorandum of appeal would also be a decree. 41. Graham, J. as His Lordship then was in the said case had held that rejection of the memorandum of appeal is not a decree on the reasoning namely now looking to Section 108 of the Code, I find it is there stated. "the provisions of this part relating to appeals from original decrees shall, so far as may be, apply to "appeals", the words "the provisions of this Part meaning those of Part VII of the code in which this particular section occurs, and the section apparently has nothing to do with Section 2 of the Code which is in the preliminary part of the Code. Section 107 of the Code also appears to me to have no bearing on the point. If the legislature had intended that the rejection of a memoran dum of appeal should also be deemed to be a decree, it would have been an easy matter to say so. I can find no authority in the Code for holding that such an order is a decree and, therefore, a final order. " 42. The above reasoning appears to be in contradiction of Section 107 (2) which empowers the appellate court to exercise the same power of a court of original jurisdiction in respect of suits in stituted therein. By reason of Section 107 (2), Order VII, Rule 11 is attracted in an appeal. Whereas Section 108 provides that the provision of Chapter VII would also apply to an appeal from an appellate decree and from orders which are available under this Code or under any special or local law in which a different procedure is not provided. Therefore, by reason of Sec tion 108, Section 107 (2) is equally ap plicable. In the said decision this situation has been completely overlooked. Therefore, by reason of Sec tion 108, Section 107 (2) is equally ap plicable. In the said decision this situation has been completely overlooked. If by reason of Section 108 provisions of Sec tion 107 (2) is attracted and if the appellate Court exercises its power under Order 7, Rule 11, in that event, the rejection of memorandum of appeal would amount to decree defined in Section 2 (2) despite Order 7, Rule 13. In fact the ratio decided in the said decision that second memorandum of appeal with sufficient Court fee can be presented even after the memorandum of appeal is rejected since such rejection though a decree per force does not preclude presenting a fresh plaint which has been sought to interpreted to mean a memorandum of appeal in the said decision of Suhrawardy, J. Order 7, Rule 13 also refers to plaint and the same provisions is being attracted in the appeal by reason of Section 107 (2) and in an. appeal from an appellate decree or from an order by reason of Section 108. 43. Thus with greatest humility and. respect to their Lordships, I am unable to pursuade myself to agree with the reason ing that rejection of memorandum of ap peal is not a decree, though, however, Suh rawardy, J. had considered the question under Order 7, Rule 13, on the other hand, ratio decided therein appears primarily to be based on Order 7, Rule 13. 44. On the other hand, Division Bench of the Patna High Court in the case of Bahuria Ramasawari Kuer and Anr. v. Dulhin Motiraj Kuer and Ors. , AIR 1939 Patna 83, had held that the rejection of the memorandum of appeal is a decree as defined in Section 2. The reasoning given in the decision by the Patna High Court seems to be more acceptable than that of the Calcutta High Court. Therefore, an order rejecting the memorandum of ap peal is an order in exercise of Order 7, Rule 11 as has been held above and as such is a. decree within the definition of Section 2 (2), subject, however, to Order 7, Rule 13 which per force may not preclude bringing of a fresh suit or fresh memorandum of appeal. 45. 45. In the present case no memoran dum of appeal was brought afresh and the order for rejecting the memorandum of appeal have become final and as such the same is a decree which is other than withdrawal of the appeal by the appellant attracting the application of the proviso contemplated in explanation to Rule 13 precluding maintainability of an applica tion under Order 9, Rule 13. 46. In the present case admittedly the appeal has not been withdrawn by the ap pellant. It is also admitted position that the petitioner was not appellant in the appeal. Whether in such circumstances the petitioner has any independent right to persue his remedy under Rule 13. The petitioner could file the application under Order IX, Rule 13 within the reasonable time either before or after the appeal was preferred by the other defendants viz. the trustees. But in the present case he had waited the outcome of the application and did not file the application under Order IX, Rule 13 of the Code till the appeal was dismissed. Then again the first proviso to Rule 13 provides that if the decree is as such which cannot be set aside is against one of the defendant, in that event it has to be set aside in respect of all the defendants. But in the present case they have been precluded from making such an applica tion under Order 9, Rule 13 of the Code. By reason of explanation and first proviso to the Rule it is not open for the Court to set aside the decree as against the appel lant who had preferred an appeal before this Court. If it cannot be set aside against those defendants and lease being in favour of the trustees, the decree cannot be split up in favour of the petitioner, who is a Treasurer of the trust having no inde pendent right. Therefore such a decree cannot be set aside only as against the petitioner. 47. Section 47 of the Indian Trusts Act, 1882 provides as follows: "47. Therefore such a decree cannot be set aside only as against the petitioner. 47. Section 47 of the Indian Trusts Act, 1882 provides as follows: "47. Trustee cannot delegate.-A trustee cannot delegate his office or any of his duties either to a co- trustee or to a stranger, unless (a) the instrument of trust so provides, or (b) the delegation is in the regular course of business, or (c) the delegation is necessary, or (d) the beneficiary, being competent to contract, con sents to the delegation. Explanation.-The appointment of an at torney or proxy to do an act merely ministerial and involving no independent discretion is not a delegation within the meaning of this sect ion. " In the present case the petitioner is not claiming to be an attorney or proxy to do an act merely ministerial and involving no independent discretion within the ex planation to Section 47. Then again the petitioner has not claimed that the Trus tees had delegated in the regular course of business responsibility of filing the ap plication under Order IX, Rule 13. He has also not claimed to be an attorney for the purpose. If he claims to be an attorney, in that event, the Trustees being precluded from filing an application under Order 9, Rule 13 on account of rejection of the memorandum of appeal as held above the petitioner cannot maintain the said application as an attorney. If there is no power in the trustees to delegate any of their power, the treasurer cannot act in respect of the trust. Whatever power the trustees which have in respect of the trust property, the same cannot be delegated to a stranger. The petitioner not being a co-trustee is a stranger, though he may be. treasurer of the trust. In the absence of any power to delegate any of their powers in relation to the trust property, the petitioner cannot claim any right inde-1 pendent of the trustees. 48. Therefore, I do not find any infir mity in the impugned order passed by the revisional Court. In the result the writ petition fails and is accordingly dismissed. There will, however, be no order as to costs. Petition dismissed. .