The Maharaja of Bhartpur and Others vs Bhagwan Das

Knox and Aikman, JJ.—Upon this appeal being called on for hearing, two preliminary objections were raised by the learned vakil who appears in the case on behalf of the present ruling Chief of Bhartpur, one of the respondents; plaintiff in the Court of First Instance. The first is to the effect that no copy of the decree was filed with the memorandum of appeal and none has been filed up to the present date. The second is to the effect that no appeal lies at all.

It appears that the suit was institutes by the late Maharaja of Bhartpur. He died on the 12th of December 1890, while the suit was still pending. On the 26th of March 1894, the present Maharaja applied to the Court to have his name entered on the record in the place of the deceased plaintiff, and an order was passed to that effect. On the 18th of July 1894, an application was presented on behalf of the defendants alleging that the application of the 26th of March 1894, was an application made by a person who was not authorized to apply and asking that the suit should abate. The Court refused this application made by the defendants arid allowed the suit to proceed; and it is from this last order that the present appeal is brought. It is contended that the order falls within the second paragraph of Section 366 of the Code of Civil Procedure, and is therefore appealable under Clause 18 of Section 588. We cannot allow this contention. The application of the defendants was not an application contemplated by the second paragraph of Section 366. No appeal lies, and, without pronouncing on the first preliminary objection and acting upon the Second, we dismiss this appeal with costs.