JUDGMENT : The question came up for consideration is whether an appeal would lie against an order allowing restoration of suit, which was dismissed for non-prosecution or setting aside an ex parte decree. It is against Ext.P4 allowing restoration of the suit, which was dismissed for non-prosecution, the petitioner came up under Article 227 of the Constitution. It is submitted that there is no provision anywhere under Order XLIII C.P.C. enabling an appeal against an order allowing restoration of suit under Rule 9 or setting aside ex parte decree under Rule 13 of Order IX C.P.C. and as such, an appeal will not lie against Ext.P4 order. But, Ext.P4 is a conditional order, by which the trial court imposed a penalty/cost of Rs.10,000/-as a condition precedent to allow the application. 2. The provision for appeal from an order under Rule 9 or Rule 13 of Order IX C.P.C. is confined only to orders rejecting an application under the abovesaid Rules by virtue of Clause (c) and (d) of Order XLIII C.P.C., which are extracted below for reference: “(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; (d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte.” 3. When there is a conditional order allowing an application either under Rule 9 or Rule 13 of Order IX C.P.C. with a default clause of rejection of application, it would squarely come under either of the abovesaid clauses (c) or (d), hence the order is appealable. The reason behind it is that on account of non-compliance of condition, it will have the effect of rejecting the application under the abovesaid provision. Necessarily, it is an appealable order under Order XLIII C.P.C.. In the instant case, what is challenged is the reasonability of the amount ordered by way of cost which comes to Rs.10,000/-, that too, with a direction to pay the same within three days. It appears that the time granted and the amount ordered does not reflect the proper application of discretion, if any, vested with the trial court. But, as discussed earlier, since it is an appealable order, larger remedy is available to the party by way of an appeal. It appears that the time granted and the amount ordered does not reflect the proper application of discretion, if any, vested with the trial court. But, as discussed earlier, since it is an appealable order, larger remedy is available to the party by way of an appeal. The petitioners fairly submitted that the respondent No.2, 17 and 21 passed away during the pendency, but admitted that their respective legal heirs are in the party array of the proceedings. Hence, submission is recorded. At this juncture, the learned counsel for the petitioners pressed for a dismissal without prejudice to the right of exhausting the larger remedy as per lex fori and lex loci. Hence, O.P.(C) will stand dismissed as not pressed.