A. N. RAY, JYOTESH BANERJEE ( 1 ) IN the referring judgment of the Hon'ble Single Judge dated 8th August, 2003, his Lordship has noted the point of difference arising out of the short but reported earlier judgment of Dulal Chandra Ojha, reported at AIR 1989 cal. 91 . ( 2 ) THE point of reference is about the maintainability of a revisional application under Section 115. ( 3 ) THE plaintiffs'/applicants' suit was dismissed for default. After some proceedings in the High Court, the application for restoration (originally made under Section 151 was treated as an application made under Order 9 Rule 9; the said restoration application was also dismissed for default. A revisional application is maintainable and that the order is not appealable. ( 4 ) THIS has been contested by the opposite parties. ( 5 ) THE short point, therefore, is whether the dismissal of a restoration application is an appealable order within the Code. ( 6 ) THE reported judgment mentioned above does not mention any reasons for holding it to be so. ( 7 ) IN the later judgment his Lordship has held that the express words of Order 43 Rule 1 sub-rule (c) mention a suit and a dismissal of an application for restoration of a suit. Thus, restoration application or its dismissal is not covered by the express words. ( 8 ) BOTH the parties have had to rely upon the identical portions of the code of Civil Procedure. These are as follows :-a) "141. Miscellaneous proceedings.- The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil. Jurisdiction. Explanation - In this section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceedings under Article 226 of the Constitution. B) 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 the Code or by any law for the time being in force, from no other orders :- (i) Any order made under rules from which an appeal is expressly allowed by rules : c) Order 9, Rule 9. (1) Where a suit is. . . . . . . . . . . . . . . . . . dismissed. . . . (1) Where a suit is. . . . . . . . . . . . . . . . . . dismissed. . . . . . . . . . . . . the plaintiff. . . . . . . . . . . . . . . . . if he satisfies the Court that there was sufficient cause for his non-appearance. . . . . . . . . . . . . . . . . the Court shall make an order setting aside the order of dismissal. . . . . . . . . . . . . . D) Order 43 Rule 1 : Appeal from orders :-an appeal shall lie from the following orders under the provisions of Section 104, namely,. . . . . . . . . . . . . . . . . (c) an order under Rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit; ( 9 ) THE plain meaning of these portions of the Code is quite clear. The authorities also support such plain construction, ( 10 ) UNDER Section 141, if there is a proceeding within the meaning of that section which is not a suit, the procedure for suits shall be followed. As such, whenever possible, in the sections or in the orders, the word suit is to be read as suit proceeding within the meaning of Section 141. ( 11 ) THE Section 141 states that the procedure provided in the Code is to be followed in those other proceedings. ( 12 ) IT is incorrect, in our opinion, to construe this phrase in a limited way and give the word procedure, occurring there; a limited meaning. It is incorrect to construe that word only to mean the. so-called procedural part of the Code of Civil Procedure, and hold that only that part is made applicable to the other proceedings, but not the substantive part of the Code. The code itself is a Code of Civil Procedure. It contains matter of substantive right which are not matters of mere procedure, as ordinarily understood. But the "procedure provided in this Code" is a phrase which refers to the entirety to the Code and not merely to a part of it. The code itself is a Code of Civil Procedure. It contains matter of substantive right which are not matters of mere procedure, as ordinarily understood. But the "procedure provided in this Code" is a phrase which refers to the entirety to the Code and not merely to a part of it. ( 13 ) IF it were the case, that Section 141 makes only the 'mere' procedure of the Code applicable to proceedings other than suits, and the right to appeal being a substantive right, Section 141 cannot, by its language, confer such a right, then the grant of probate would also not be appealable. But clearly it is appealable. Thus, Section 141 also ropes in the provisions of appealability. ( 14 ) ON this interpretation a restoration application, being a proceeding under Section 141 is to be itself restored, if dismissed for default, by another application under Order 9 Rule 9. ( 15 ) SIMILARLY under Order 43 Rule 1 sub-rule (c) the second application under Order 9 Rule 9, on dismissal, will become appealable; the word suit is then to be read, by reason of Section 141, as meaning the first application made under Order 9 Rule 9. ( 16 ) THE bracketed phrase " (in a case open to an appeal)" occurring in this sub-section means that, the case which is attempted to be restored, would itself give rise to an appealable order or decree if it were head and decided. ( 17 ) WHEN the appealability of an order made on an Order 9 Rule 9 application for restoration a suit, is under consideration, it means that the suit, if decreed, would have produced an appealable decree; if a restoration application of a restoration application is dismissed and appealed from, then it means that the first restoration application itself relating to the suit, if dismissed, would have given rise to an order which is open to appeal. ( 18 ) ON this construction an order rejecting restoration of a restoration application is appealable on a combined reading of the aforesaid sections of the Code of Civil Procedure. ( 19 ) AS regard the authorities, it is helpful to note Thakur Prasad's case reported at (1895) ILR 17 All 106 (Privy Council) where it was stated as follows:". . . . . . . . . . . . . . . . . . ( 19 ) AS regard the authorities, it is helpful to note Thakur Prasad's case reported at (1895) ILR 17 All 106 (Privy Council) where it was stated as follows:". . . . . . . . . . . . . . . . . . THE proceedings spoken in Section 647 (of the 1882 Code of Civil Procedure which corresponds to Section 141 of the present Code), include original matters in the nature of suits, such as proceedings in probates, guardianships and so forth,. . . . . . . . . . . . . . . ". ( 20 ) BY reason of the expression added by the 1976 amendment a restoration application has been given the same status as that of an original suit-like proceeding; that is why the appealability arises out of the express provision of the Code. ( 21 ) IN another decision of the Judicial Committee given in the case of singh v. Singh reported at AIR 1928 Lakore 627, it was stated as follows-". . . . . . . . . . . . . . . . . . . IT is settled law that right of appeal is not a mere matter of procedure but a vested right which inheres in a party from the commencement of the action in the Court of first instance and such right could not be taken away except by an express provisions or by necessary implication. " ( 22 ) THUS, it would not be right to interpret the word suit in a restricted way in Order 43 Rule 1 sub-rule (c) and thus negate the right of appeal to the second restoration applicant, since he has that right even when he makes the second application in the first place. ( 23 ) A Special Bench decision of our High Court, given in the case of mat, Nurnahar Bewa and Another reported at AIR 1988 Cal. 358 states as follows- in the concluding sentence of Paragraph 10; In our view, therefore, the application for restoration of a Misc. Case arising out of an application under Rules 4, 9 or 13 of Order 9 for restoration of the Misc. Case if such misc. 358 states as follows- in the concluding sentence of Paragraph 10; In our view, therefore, the application for restoration of a Misc. Case arising out of an application under Rules 4, 9 or 13 of Order 9 for restoration of the Misc. Case if such misc. Case itself is dismissed for default, is maintainable under Order 8 read with Section 141 of the Civil Procedure Code and the first question referred to the Special Bench is therefore answered in the affirmative. " ( 24 ) THUS, by a combined reading of Section 141 and Order 9 the special Bench has read, for the word suit in Order 9, effectively the word suit/proceeding. ( 25 ) IN a similar way, we read, by a combined application of Section 141 and Order 43 Rule 1 sub-rule (c), for the word suit, the effective phrase suit/proceeding. ( 26 ) UNDER Section 104, sub-clause (i) mentions that only the orders provided as appealable in the Rules shall be appealable. It was argued that the Rule itself i. e. Order 43 Rule 1 sub-rule (c) mentions but a suit; accordingly the dismissal of the restoration application is not appealable. But the beginning of Section 104 mentions about the other provisions in the body of the Code which include Section 141. If Section 104 is read from the beginning upto clause (i), there is no way to exclude the effect of Section 141 upon Order 43 Rule I sub-rule (c ). ( 27 ) AS such, we are of the clear but respectful opinion that the revisional application is not maintainable in law as an appeal lies. ( 28 ) WHATEVER might be the words of reference to us, we can only decide the differing point of law between the two Hon'ble Judges. We have given that decision above. ( 29 ) THE revisional application itself would now have to be listed before the Hon'ble Single Judge having the jurisdiction for its disposal. It might be said that there remains nothing but an order of dismissal to be passed in the revisional application; that may be so, but we do not have the jurisdiction to pass it.