S ZAHOOR MUHAMMAD KHAN Vs. DRMXDE-NORONHA

JUDGEMENT

(1.) This is an appeal against an order dated May 5,1934, by which the 2nd Subordinate Judge of Cawnpore on appeal set aside the judgment of the trial Court dismissing the plaintiff's suit and sent the case back to it "for trial de nova after allowing the amendment sought for in application dated November 46, 1931, giving further permission to the plaintiff to make any other matter clear in the plaint along with the said amendment." It appears that the plaintiff brought a suit in the Court of the Munsif of Oawn-pore for the recovery of a certain sum of money and for the ejectment of the defendant from certain premises. In the plaint the plaintiff was described originally as M. X. de Noronha & Son, The Mall, Cawnpore. On an objection by the munsarim of the Court that the plaintiff appeared to be a firm and as such it should sue through a named individual, the plaintiff applied for amendment and prayed that the heading of the plaint should be M. X. de Noronha & Son through W. C. de Noronha senior. The suit was eventually dismissed by the learned Munsif on January 12, 1932.

(2.) The plaintiff appealed to the lower Appellate Court and while the appeal was pending W. C. de Noronha, senior, happened to die and an application for substitution was made more than 90 days after the death. The application for substitution was opposed and it was said that the appeal had abated. The learned Judge, however, did not accede to the contention of the respondent and allowed substitution by an order dated January 10, 1934. Later, when the appeal was ripe for bearing, the lower Appellate Court passed the remand order mentioned by us in the beginning of our judgment.

(3.) In appeal before us it is contended by grounds Nos. 1 and 4 that the lower Appellate Court had no jurisdiction to entertain the appeal which had abated and the order for substitution of names was irregular. We arc of the opinion that these two grounds of appeal arc untenable in view of Section 105 (1), Civil Procedure Code. It is conceded by the parties that no appeal lay against the order for substitution, nor was a revision permissible. It is, however, said by learned Counsel for the appellant that this is the proper stage when the irregularity committed by the lower Appellate Court in allowing substitution of names although the appeal had. abated could be set forth as a ground of objection in the memorandum of appeal to this Court. It is, however, clear that this cannot be done in an appeal against an order of remand, but the proper stage would arrive when the decree itself is appealed from. The words in Section 105 (1) are: Where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.