Harries, C J - (1.)This is a petition for revision of an order of a learned Subordinate Judge to the effect that no appeal lay to his Court.
(2.)An application for pre-emption under Section 26F, Men. Ten. Act was dismissed for default. An application was then made for setting aside the dismissal and restoration of the application. That application was dismissed on contest and the unsuccessful applicant appealed to the Court of the learned Subordinate Judge. The learned Subordinate Judge held that no appeal lay and dismissed the appeal.
(3.)It has been argued in the first place that this was an order passed under Section 26F and was therefore appealable by reason of Sub-section (10) of that section. But, in my view, this is not an order under Section 26F. I have held that an order of dismissal for default would be an order under that section, but this was an order passed in an entirely different proceeding. The application under Section 26F had been dismissed for default and the applicant filed an application for restoration. Section 26F makes no provision for restoration, but the provisions for setting aside ex parte orders and restoring applications contained in the Code are made applicable to applications under Section 26F by reason of the provisions of Section 143, Ben. Ten. Act. The dismissal of this application to set aside the ex parte dismissal was a proceeding not under Section 26F but under the provisions of Order 9, Rule 9, Civil P.C. That being so, no appeal could lie in this case by reason of Sub-section (10) of Section 26F, Ben. Ten. Act.