Kundan Lal and Another vs Wahid-Un-Nissa and Others

Tudball and Muhammad Rafiq, JJ.—A preliminary objection is taken that no appeal lies. The suit was dismissed by the court of first instance as neither of the parties appeared. One party went up in appeal to the court below, which entertained the appeal, set aside the order of dismissal and directed that the first court should hear the case. The opposite party has come up in second appeal, and it is urged that no appeal lies. On behalf of the appellants it is urged that an appeal lies under Order XLIII, Rule 1, Clause (u), of the Code of Civil Procedure. This order relates to orders passed by appellate courts under Order XLI, Rule 23. In the present case the order passed by the court below is clearly not an order under Order XLI, Rule 23, and therefore under Order XLIII, Rule 1, the appellants have no right of appeal. It is, therefore, clear that the preliminary objection must prevail. We are asked to treat this appeal as an application for revision. We decline to do so in the circumstances of the present case. The appellants, if they care to do so, must file an application for revision which will be decided on the merits. The appeal fails and is dismissed with costs.