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Judgment
S.C. Pandey, J.
This is an appeal filed by the Plaintiffs against the order dated 17-4-1993 passed by second Additional District Judge, Sagar in Civil Suit No 14-A of 1986 u/s 96 of the Code of Civil Procedure.
The trial court had imposed a cost of Rs. 150/- upon the Appellants payable by next date of hearing that is 1-12-1992 while allowing the prayer for adjournment of the case on 29-8-1992 as the Appellants could not lead evidence on that day. The cost imposed upon the Appellants was not paid on the next date on 1-12-1992. Thereafter the case was adjourned from time to time. On 6-4-1993, the Appellants offered Rs. 150 to the counsel for Respondents but he refused the offer. Thereafter the court below has in exercise of its power u/s 35-B of the Code of CPC held that the suit is liable to be dismissed for non-prosecution and accordingly dismissed the suit.
A preliminary objection was raised by the counsel for the Respondents to the effect that the order of dismissal for default for nonpayment of costs of Rs. 150/- in exercise of power u/s 35-B of the Code of CPC amounted to an order within the meaning of Section 2(14) of the Code of Civil Procedure. It was further urged that an order u/s 35B of the Code of CPC has not been made appealable by Section 104 of the Code of CPC itself or by any rule framed under the Code. The Order 43 of the Code of CPC does not contain any rule making this order appealable. It has been argued that no appeal would lie against an order which is not made appealable by the Code in view of Section 105(1) of the Code of Civil Procedure. It was contended that the impugned order is not a decree within the meaning of Section 2(2) of the Code of CPC against which an appeal lies u/s 96 of the Code of Civil Procedure. This is the case of dismissal in default for non-payment of costs. It has been expressly stated that "dismissal in default" would not be a decree by Sub-section (2) of Section 2 of the Code of CPC and, therefore, the order passed by the Court below should be treated as an "order" and not a decree.
As against the aforesaid argument on behalf of the Respondents, the learned Counsel for the Appellants, argued that the dismissal order is a decree within the meaning of Section 2(2) of the Code of CPC and not an order as defined in Section 2(14) of the Code of Civil Procedure. The learned Counsel for the Appellants argued that the order of dismissal for non-payment of costs would be a decree within the meaning of Section 2(2)of the Code of Civil Procedure. The definition of decree is wide enough to cover the dismissal in default u/s 35B of the Code of Civil Procedure. It was argued further that definition clause of Section 2(2) of the Code by providing Clause 2(2)(b) in Section 2(2) of the Code of CPC excluded only ''dismissal in default'' which are covered by Order 9 of the Code read with Order 17(2) thereof. Reliance was placed on the Full Bench decision of Budhulal Kasturchand Vs. Chhotelal and Others, . 1 in that case, the words ''dismissal in default'' used in exclusionary Clause (b) of Section 2(2) were narrowly interpreted to mean "dismissal in default'' under Order 9 read with Order 17, Rule 2 of the Code as they existed prior to amendment of the Code of CPC by Amendment Act No 104/76 with effect from 1-2-1977. It is urged that the Amendment Act No. 104 of 1976 does not change the legal position.
The scheme of the Code of CPC makes certain decrees appealable u/s 96 thereof. Forgetting the non-appealable decrees for a moment because it is not necessary to refer to them for the purpose of our case, it may be stated that Section 96 of the Code provides for an appeal against a decree passed by the trial court, be it in the presence of the parties or even ex parte. Such a decree may be preliminary or final. But decree it must be. However, some orders have been fictionally made decrees by express provisions though they may not be covered by the definition of decree u/s 2(2) of the Code of Civil Procedure. They too are appealable as decrees. Apart from Section 96 of the Code of Civil Procedure, certain orders passed by the trial Court are appealable u/s 104(1) of the Code of Civil Procedure. The amended Code of CPC permits appeal against the orders u/s 104(1)(ff), (ffa), (g), (h) and (i) subject to proviso in respect of Clause (ff). The Clause 104(l)(i) of the Code of CPC makes reference to rules framed under the Code. These rules are made under Order 43, Rule (1) of the Code of Civil Procedure. The appealable orders under aforesaid rules are of mixed nature. They are appealable from the orders passed in a suit at the trial stage. Others may arise from the order passed at the appellate stage. Some orders may be appealable at the trial stage or even at appellate stage, of the suit depending upon their nature. Yet others may arise from collateral proceedings to suit like orders passed under Order 9, Rule 9 or Order 9, Rule 13 of the Code of Civil Procedure. Some of the appealable order may arise from the orders passed at the execution stage of a decree. Thus the rules framed under Order 43, Rule 1 of the Code do not form a homogeneous pattern. All that can be said is that the legislature, in its wisdom, had made certain orders appealable looking to the nature of their importance. Rest of the interlocutory orders in a suit may be challenged in appeal from the decree passed in the suit on the grounds mentioned in Section 105 of the Code of CPC or as per Order 43, Rule 1A of the Code.
Section 2(2) of the Code of CPC defines a decree as follows:
Definitions. - In this Act, unless there is anything repugnant in the subject or context,-
(1) xx xx xx xx
(2) "decree" means the formal express 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. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include-
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation: A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final. It defines an ''order'' as follows:
2(14) "Order" means the formal expression of any decision of a Civil Court which is not a decree." Here it may be seen the definition of ''order'' that both decree and order use the words ''formal'' expression which in a decree is that of an adjudication; whereas in an order it is that of decision. There appears to be hardly any difference between the word adjudication and decision except that the former belongs to specie of pompous legalistic jargon; whereas the latter finds its pedegree in the common English. It appears to this Court that these words are easily interchangeable. Even Section 2(2) has used the words adjudication for an appealable order. It would be clear from the definition of the ''order'' that it is a decision of the Court which does not fall within the definition of a decree. It is, therefore upon the definition of a decree we must concentrate. The main part of definition of decree resolves itself into following ingredients:
(i) It must be a formal expression of an adjudication
(ii) It must determine conclusively the rights of parties so far as the court, that is the one making the formal expression, is concerned.
(iii) The formal expression of the adjudication must relate to adjudication about rights of the parties with regard to all or any of the matters in the controversy.
(iv) The adjudication must be in a suit.
From the aforesaid analysis of the definition of the main part of the decree, one thing clearly emerges that there should be conclusive determination of rights of parties with regard to all or any of the matters in the controversy between them by the court which passes a decree. The existence of conditions No. (ii) and (iii) would be very material for determining that an adjudication or a decision in a suit is decree or not. With this caveat in mind, we proceed to examine the rest of part of the definition. It has been further provided that rejection of a plaint would be deemed to be a decree. The plaint is ordinarily rejected as per Order 7, Rule 11 of the Code of Civil Procedure. However rejection of plaint would not determine any of the rights of the parties conclusively. Therefore Order 7, Rule 13 of the Code of CPC permits the Plaintiff to file a fresh plaint, if there be no similar defect in the subsequent plaint which culminated in the rejection of the earlier plaint. However, the legislature in its wisdom, wanted that there should be check on arbitrary rejection of plaint and therefore, by the legislative device known as ''fiction'' declared that rejection of the plaint shall be deemed to be a decree. The consequence is that a Plaintiff could still file a fresh suit on the same cause of action minus the previous defect. He can file an appeal against rejection of the plaint u/s 96. Both these course are open as per provisions of Order 7, Rule 13 and Section 96 of the Code of Civil Procedure. The case of Ganga Narain Gupta v. Tiluckram Chowdhary and Ors. reported in 15 Indian Appeals 119 illustrates the former option exercised by the Plaintiff under analogous provisions of the Code of Civil Procedure, 1882. The question then arises as to what the court determines which would be deemed to be conclusive when it rejects the plaint? Obviously the ground on which the plaint was rejected would be conclusive of the matter. It would alone form the cause for passing the deemed decree and it cannot be reopened in subsequent suit. The defect can be remedied only then a suit can be represented under Order 7, Rule 13 of the Code. This is how the Court should harmonize apparently the conflicting provisions in order to avoid head on collision which may, in turn, raise a ground of ultra vires. It is not necessary to dwell further on restitution because restitution is provided for u/s 144 of the Code of CPC when a decree is reversed. Since it is a consequence reversal of decree, it has been included in the definition of decree.
This takes us to the concluding part of the definition of the ''decree'' which is an exclusionary clause. The definition expressly excludes from its ken-
(a) any ''adjudication'' from which an appeal lies as appealable Order.
(b) any order of dismissal for default.
It appears to this Court that the legislature wanted to make it clear that whatever be the effect of the main part of the definition, the orders, which have been expressly appealable by Section 104(1) and Order 43, Rule 1 of the Code of CPC as orders cannot be said to be a decree. This should so notwithstanding their effect. It was further made clear that any order of dismissal for default would not be a decree.
It would be obvious that any other adjudication or decision not made by the Court finally, so far as it is concerned, and expressed formally, would be an order within the meaning of Section 2(14) of the Code of Civil Procedure. It is apparent that distinction between a ''decree'' and an ''order'' was designedly made so that they did not run into each other. In the case of Ahmed Musaji Saleji and Ors. v. Hasim Ebrahim Saleji and Ors. reported in AIR 1915 PC 116, at pages 117 and 118, the following observation was made:
The Code makes no provision for something which is neither a decree nor an order, nor for anything which is both, neither does it provide that one adjudication by the Court can be resolved into diverse elements, some of which are decrees and some orders. This was in substance a decree; it did not cease to be such, because a subordinate part of it, if correctly made, might have been made separately as an order. It conclusively determined the rights of the parties in regard to certain, and those essential matters, involved in the suit and the expression "matters in controversy" in Section 2(2) the definition of decree cannot, in their Lordships opinion, be pressed so as to exclude matters which though as it happened they were common ground, must have been actually decided if any question had arisen and were the foundation of the whole determination.
Harping back on the exclusionary Clause (b) of Section 2(2) of the Code of Civil Procedure, it is argued that the Full Bench case of Buddhulal v. Chhotelal (supra) had confined the phrase ''dismissal in default'' to ''dismissal in default'' under Order 9 of the Code of CPC read with Order 17, Rule 2 there of. The Full Bench of the Court was of the view that the phrase ''dismissal in default'' used in the exclusionary clause of Section 2(2) of the Code should be construed narrowly. The whole case was referred to the Full Bench. Paragraph 24 of the report is that the trial Court passed a peremptory order adjourning the case at the request of Plaintiff that he should pay the cost of adjournment amounting to Rs. 100/- before the next date i.e. 5th of December, failing which the suit shall be deemed to be dismissed. The costs offered on 5th December were not accepted. The 4th of December was Sunday. The Trial Court held that the dismissal was automatic. It appears that the Full Bench took the view that dismissal was under Order 17, Rule 3 of the Code. This would be clear from paragraph 15 of the judgment at page 4 of the report:
Pausing here for a moment let us turn to Order 17, Rule 3. Where the Plaintiff was granted time to pay adjournment costs, but he does not perform the act, the Court has power ''notwithstanding such default'' to proceed to decide the suit forth-with. Here, the word ''default'' necessarily refers to non-payment. Therefore, the dismissal of the suit for non-payment of costs will undoubtedly be within the purview of Order 17, Rule 3 and, as such, it would be appealable.
It cannot be disputed that under Order 17, Rule 3 of the Code, the Court is enjoined to decide the case forthwith on the next date after adjournment notwithstanding the default committed by a party of producing the evidence or doing anything essential for progress of the suit for which the adjournment was granted. It is trite law that such decision should be on merits and its result would be a decree. The question is what happens when the Court dismisses a case under Order 17, Rule 3 of the Code for lack of evidence. Such a dismissal cannot be otherwise than a decision on merits and not a decision on default. The adjudication is ''notwithstanding the default'' in terms of Order 17, Rule 3 of the Code. Therefore, despite the conclusion of the Full Bench that the impugned order passed in that case was under Order 17, Rule 3 of the Code and it amounted to a decree, it went on to decide if words ''dismissal in default'' in Section 2(2)(b) of the Code include orders of dismissal in default other than those mentioned in Order 9 of the Code. On the conclusion of the Full Bench that the order in question was a decree under Order 17, Rule 3 of the Code, there was no reason to decide the questions referred to it, yet the Full Bench answered the questions referred to it and held that Section 2(2)(b) of the Code was confined to dismissal under Order 9 read with Order 17, Rule 2, CPC Code.
The amendment by Act No. 104 of 1976 in Order 17, Rules 2 and 3 of the Code of CPC does not change the legal position in any manner. By adding an Explanation to Order 17, Rule 2 of the Code of Civil Procedure, it empowers the Court to proceed to decide the suit forthwith in absence of a party under Order 17, Rule 3 of the Code if there be any default of the kind mentioned in the Rule provide that substantial portion of the evidence of that party is recorded. Otherwise the Court cannot proceed to decide the case under Order 17, Rule 3 of the Code of CPC in absence of a party. It is bound to take resort to provisions of Order 17, Rule 2 of the Code of CPC in view of Order 17, Rule 3(b) of the Code as amended. The Supreme Court in the case of Prakash Chander v. Janki Manchanda, AIR 1987 SC 43 has taken the aforesaid view. The following words of G.L. Oza, J. who spoke for the Bench succinctly, lays down the law as follows in paragraph 6 at page 44:
It is clear that in cases where a party is absent only course is as mentioned in Order 17(3)(b) to proceed under Rule 2, it is, therefore, clear that in absence of the Defendant, the Court had no option but to proceed under Rule 2. Similarly the language of Rule 2 as now stands also clearly lays down that if any one of the parties fails to appear, the Court has to proceed to dispose of the suit in one of the modes directed under Order 9. The explanation to Rule 2 gives a discretion to the Court to proceed under Rule 3 even if a party is absent but that discretion is limited only in cases where a party which is absent has led some evidence or has examined substantial part of their evidence. It is, therefore, clear that if on a date fixed, one of the parties remains absent and for that party, no evidence has been examined upto that date, the Court has no option but to proceed to dispose of the matter in accordance with Order 17, Rule 2 in any one of the modes prescribed under Order 9, CPC Code. It is, therefore, clear that after this amendment in Order 17, Rules 2 and 3, CPC there remains no doubt and, therefore, there is no possibility of any controversy.
Therefore, this Court in this case is required to hold if the Appellant did not comply with the provisions of Section 35-B of the Code of Civil Procedure, then the ''dismissal in default'' would have the effect of a decree. If that be the case, there is no escape from the conclusion that the appeal lies. If, on the other hand, the Court comes to the conclusion that the order of dismissal u/s 35-B of the Code of CPC cannot be a decree, then the appeal does not lie. It is, therefore, necessary to reproduce the Section 35-B of the Code of CPC in toto:
35-B. Costs for causing delay. - (1) If, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit-
(a) fails to take the step which he was required by or under this Code to take on that date, or
(b) obtains an adjournment for taking such step or for producing evidence or on any other ground,
the Court may, for reasons to be recorded, make an order requiring such party to pay the other party such costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the Court on that date, and payment of such costs on the date next following the date of such order, shall be a condition precedent to the further prosecution of -
(a) the suit by the Plaintiff, where the Plaintiff was ordered to pay such costs.
(b) the defence by the Defendant, where the Defendant was ordered to pay such costs.
Explanation - Where separate defences have been raised by the Defendant or groups of Defendants, payment of such costs shall be a condition precedent to the further prosecution of the defence by such Defendants or groups of Defendants as have been ordered by the Court to pay such costs.
(2) The costs, ordered to be paid under Sub-section (1), shall not, if paid, be included in the costs awarded in the decree passed in the suit; but, if such costs are not paid, a separate order shall be drawn up indicating the amount of such costs and the names and addresses of the persons by whom such costs are payable and the order so drawn up shall be executable against such persons.
This section was added by Section 104 of Act of 1976. The object of this section was to provide specifically that a party, who does not take step, as required by the Code, or obtains adjournment for taking that step or producing his evidence, then the opposite party may be compensated, by such costs as would meet the probable expenses incurred by that party on the date when the default was made or adjournment was sought. It was required that the payment of costs by the next date of hearing would be condition precedent for further progress of the suit in case the party, who is required to compensate, is the Plaintiff or to right to further defend the suit in case such party is a Defendant. We are not concerned with the other part of Section 35-B of the Code of CPC and it is not necessary to discuss them. However, Sub-section (2) of Section 35-B of the Code makes it clear that the costs awarded u/s 35-B(l) shall not be a part of the decree, if paid and if not paid, shall be executable as an order and for this purpose, a formal order has to be drawn indicating the names and addresses of the persons from whom the costs can be recovered. It is apparent from Section 35-B(2) of the Code of Civil Procedure, that the Legislature, in its wisdom, has empowered the Courts to award compensatory costs for an adjourned hearing apart from the merits of the case. The amount of costs so determined cannot be a part of decree in the suit and cannot be executed as a decree. The order passed would be a formal expression of an adjudication not amounting to decree. However, we are not concerned with the order of imposition of costs. We are concerned with the consequences of non-payment of costs by the next date. In case the Plaintiff did not pay costs by next date and the Court does not extend the date of payment which was condition precedent to adjournment, then the suit cannot proceed, if it is the Plaintiff who was required to pay it, if the Plaintiff does not pay by next date, there would be no automatic dismissal. The Court is still required to assess the cause of non-payment. The Court may stop further progress of the suit in the case if the Plaintiff does not pay and may proceed only when the Plaintiff pays. However, when there is clear indication that the Plaintiff does not want to pay or has brought about a situation that he cannot set the clock back, then the Court has no option but to dismiss the suit. The consequential order would be an order apart from an order u/s 35-B of the Code of Civil Procedure. It is an independent order which may amount to dismissal for non-compliance of a mandatory condition precedent, determined by an order u/s 35-B of the Code. The non-compliance aforesaid may amount to want of prosecution by conduct. It may amount to disobeying the order of the Court with a view not to prosecute the suit or its effect may be that if a person unequivocally withdraws his suit wholly or abandons a part of it, the Court has no jurisdiction to ask him not to do so. This has been provided in Order 23, Rule 1 of the Code of Civil Procedure. The rule further provides that by enacting Sub-rule (4) of Order 23, Rule 1 of the Code of Civil Procedure, a fresh suit cannot be filed on the same cause of action. It is implicit in this sub-rule that withdrawal of a suit wholly or partly would not be res judicata. Otherwise there would be no occasion to frame this rule. However, dismissal of a suit for want of prosecution would not be a decree unless it is deemed to be a decision on merit. Therefore, the true question that is to be asked is if the dismissal for non-payment of compensatory costs u/s 35-B shall be a decision on merits? Such a decision is not on merits. It does not determine any of the rights of the parties. The costs imposed u/s 35-B of the Code is declared not to form part of a decree which could be passed on merits if compliance was made. Could dismissal for non-payment of such a costs amount to decree? Ordinarily such a dismissal order may be described as dismissal for default or for want of prosecution the way we look at it. Non-compliance of the order of the Court may be treated as a default. Otherwise the refusal to pay costs may amount to non-prosecution. However, we are required to interpret the consequential order of dismissal of suit in the back ground of Section 35-B of the Code of Civil Procedure. Section 35-B of the Code of CPC in terms does not provide for dismissal in default. It does not authorise the Court expressly to dismiss the suit in default of payment of costs. In the opinion of the Court, the words ''dismissal in default'' imply that the legislature recognises certain acts on the part of parties as a fault. Consequent action is prescribed by the rules. In effect the order to be passed by the Court is prescribed by the law. However, when the law does not mandate any course of action to the Court and a situation is brought about by the conduct of a Plaintiff, that the Court cannot proceed at all, then the order of dismissal of suit would not be by way of default. The Court refuses to proceed and ultimately dismisses the suit because the Plaintiff does not show any desire to proceed with the suit. The dismissal in such cases lacks the element of fault, but shows that the Court dismisses the suit because the Plaintiff does not want to prosecute the suit. A dismissal for want of prosecution would not amount to a decree because the ''cause of action'' on which the suit was brought subsists. It is not a decree in the sense that any of the rights of parties in controversy was conclusively determined so far as the Court dismissing the suit is concerned. It does not amount to rejection of plaint.
It is apparent, when a Plaintiff withdraws his suit, expressly he does not want to prosecute it. He can also do so impliedly by refusing to pay costs. However, when there is express unconditional withdrawal of a suit, it cannot be said that any of the rights of the parties is determined by the Court. The legislature then provided in Order 23, Rule 1 Sub-rule (4) that fresh suit cannot be brought on the same cause of action. There was no need to frame such a rule if the dismissal for withdrawal of suit would be deemed to be a decree within the meaning of Section 2(2) of the Code of CPC and would be res judicata in a subsequent suit. The legislature has framed similar rules in the shape of Rules 4 and 5 of Order 9. However, these rules can be compared and contrasted with Rule 9(1) of Order 9 of the Code. The Rule 4 of Order 9 gives right to a Plaintiff to file a fresh suit subject to limitation or to set aside the order of dismissal when dismissal is under Rule 2 or 3 of Order 9 of the Code. The dismissal under Rule 2 of Order 9 is for nonpayment of Court fee or postal charges or copies of the plaint or its concised statement for the purpose of issuance of summons. The dismissal under Order 9, Rule 3 is for non-appearance of the parties. Similar rights are given to a Plaintiff when the suit is dismissed due to default of the Plaintiff when he does not apply for fresh service or summons within one month of the report, or order of non-service. Thus Rules 4 and 5 of Order 9 indicate that ''the cause of action'' is not destroyed on account of default of the Plaintiff. These rules were made by way of abundant caution to make this position clear. The dismissal under Order 9, Rule 8 has been treated differently in Order 9, Rule 9(1) of the Code of Civil Procedure. Here the Plaintiff is precluded from bringing a suit on fresh cause of action. However, making of this rule does not alter the legal position that dismissal for non-appearance of Plaintiff does not conclusively determines the rights of parties on any point in controversy by destroying the cause of action. If it were decree, then there shall be no occasion to provide for the aforesaid contingency. The legislature wanted to give only one remedy of setting aside dismissal when dismissal was under Order 8 of Rule 9 of CPC Code. In the opinion of this Court, Order 9 of the Code of CPC is exhaustive and is sort of Code within the Code for treating all the contingencies of default, either on the part of the Plaintiff or the Defendant. At best, payment of costs u/s 35-B of the Code could be compared with non-payment of Court-fee or postal charges as provided in Rule 2 of Order 9. However, Section 35-B of the Code does not specifically provide for dismissal of suit for non-payment of costs. The costs under that section are not costs in the suit. Therefore, there is no provision for dismissal in default or setting aside the dismissal in default. Therefore, if the Court dismisses a suit for non-payment of costs which have to be paid as a condition precedent to the further progress of suit, the dismissal would not be for default but for non-prosecution of the suit. The costs are otherwise made recoverable. Such a dismissal could not be a decree as the cause of action survives. There is another way of looking at the matter. Is the subsequent suit based on the same cause of action barred u/s 11 of CPC Code. If the answer to this question is in the affirmative, then such dismissal shall be a decree. If the answer is negative, then it would be an order and since the order is non-appealable, no appeal lies. In case of Sheodan Singh Vs. Smt. Daryao Kunwar, , it was held by the Supreme Court in paragraph 13, at page 1336, as follows:
Where for example, the former suit was dismissed by the trial Court for want of jurisdiction, or for default of Plaintiff''s appearance or on the ground of non-joinder of parties or misjoinder of parties or multiferiousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the Plaintiff to produce probate, or letter of administration, or succession certificate when the same is required by law to entitle the Plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional Court fees on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision not being on merits, would not be res judicata in a subsequent suit.
This decision was followed in another decision of Supreme Court in the case of Ram Gobinda Dawan and Others Vs. Smt. Bhaktabala, . Both these decisions indicate that a dismissal like the one in our hands would not amount to res judicata. Dismissal for non-compliance of the order u/s 35-B of the Code would not be a decree under Order 17, Rule 3 of the Code. Otherwise also, that order would not be a decree. The ratio of Full Bench case that a dismissal under Order 17, Rule 3 of the Code would be a decree and dismissal in default u/s 2(2) is confined to those dismissals which are covered by Order 9. This Court has come to the conclusion that dismissal in this case is not for default but it is for non-prosecution. Such a decision would not amount to dismissal in default. The order for dismissal is not on merits. It does not determine the rights of parties conclusively. It does not destroy the cause of action. It is not res judicata. Therefore, such an order cannot be treated as decree. It is not an appealable order. Therefore, no appeal lies. It may be revisable.
Consequence of the above discussion is that the preliminary objection is sustained and it is held that no first appeal lies. Accordingly, this appeal may be converted into revision. The office is accordingly directed to register this case as revision. The learned Counsel for the Appellant may also make necessary amendment. After due process, the case may be heard finally as a revision.