KUNWAR MADHAVA SURENDRA SAHI Vs. BBITHAL DASS

JUDGEMENT

(1.) THE appeal before us purports to be in first appeal from an order passed under Rule 4 of Order X of the Code of Civil Procedure. A preliminary objection is taken that no appeal lies. Under Order XLIII, Rule 1(e), an appeal lies against an order under Rule 4 of Order X pronouncing judgment against a party. Whether an order passed by a Court which is purporting to deal with one of the parties under the provisions of Order X, Rule 4, of the Code of Civil Procedure does or does not amount to pronouncing judgment against that party, must depend on the particular facts of each case and on what actually took place. We have examined the record and we are quite satisfied that it cannot be said that the Court below pronounced judgment against the present defendant appellant within the meaning of that rule. That Court seems to have gone on and tried the suit on the merits. An appeal will lie against the final decree and in the course of that appeal, if this particular defendant has any grievance against the proceeding of the Court below as affecting the merits of its decision, he may raise the point in his memorandum of appeal. We accept the preliminary objection and dismiss the appeal with costs, including fees on the higher scale.