MOLVI WALAYAT HUSAIN Vs. RAM LAL

JUDGEMENT

(1.) THIS appeal arises out of a suit for pre-emption filed by one Khoda Bux. During the pendency of the suit Khoda Bux died. His heirs were not brought upon the record and the Court of first instance on August 13th, 1913, held that the suit had abated and made the order for the abatement of the suit under Rule 3 of Order XXII. It gave no cost to the defendant vendee. The defendant vendee preferred an appeal to the lower Appellate Court impleading the heirs of the deceased plaintiff as respondents to the appeal. An order directing the abatement of a suit is not a decree within the meaning of that term as defined in the Code of Civil Procedure. It has been so ruled by this Court under Act XIV of 1882 in several cases and among them I may mention the case of Hamida Bibi v. Ali Husein Khan 17 A. 172 : A.W.N. (1895) 42. The order is not also appealable either under Section 104 or under Order XLIII of the new Code of Civil Procedure. The Court below, therefore, ought to have rejected the appeal on the ground that no appeal lay against the order. The Court, however, proceeded to hear the appeal to which the heirs of Khoda Bux were parties and varied the order of the Court below by awarding costs. The present appeal is filed against that decree. As I have already pointed out, no appeal lay to the Court below and that Court has erred in treating the order of the Court of first instance as a decree. The appellants to this Court have, therefore, come up here by way of appeal against the decree of the Court below. THIS they are entitled to under the practice of this Court as laid down in Jwala Prasad v. Salig Ram 13 A. 575 : A.W.N. (1891) 158 and in Second Appeal No. 825 of 1910 decided on May 8th, 1911, and I allow the appeal, and setting aside the decree of the Court below restore the order of the Court of first instance on the ground that the said order was not appealable under the Code of Civil Procedure. I make no order as to costs as the point ought to have been taken by the appellants both here and in the Court below.