BHOLA Vs. BHAGU AND ANR.

JUDGEMENT

(1.) THIS second appeal of the Defendant arises out of a suit which was originally instituted 23 years ago. The case has a checkered history and has been going on from one Court to the other. Briefly stated the facts are these: one Labhu had four sons Bhagu, Teju, Prabh Das and Joginder. The four brothers sold their 58 Kanals of agricultural land for Rs. 5936/ - by a registered deed dated 10th Poh 1980 to Karam Chand and Shanker Das. Bhagu and Teju were minors at the time and, therefore, the sale on their behalf was effected through Mst. Hukma, their mother, as their de facto guardian.

(2.) A preliminary objection is taken by Shri Lachhman Das, the learned Counsel for the respondent, that the appeal was not competent. His argument is that since an order setting aside abatement of a suit was not appealable a second appeal from the remand order on the question of abatement which should be taken to have been set aside, would not lie. Reliance has been placed on Order 43, Rule 1(u), C.P.C. which enjoins that an appeal from an order under Rule 23 of Order 41 remanding a case was competent only wh'en an appeal would lie from the decree of the appellate Court.