1. Shanker Lal, plaintiff-respondent, instituted a suit in his capacity as a cosharer against Mt. Bitana, the lambardar, for his share of profits under Section 164, Act 2 of 1901. The suit not having been contested, an ex parte decree was passed in favour of the plaintiff on 30th September 1926. No appeal was preferred from this decree. No application was made under Order 9, Rule 13, Civil P. C, for setting aside the ex parte decree. An application for review of judgment was made on 4th January 1927. This review was granted on 30th May 1927.
2. Under the Civil Procedure Code no appeal lies from an order rejecting an application for review of judgment, but an order granting an application for review is expressly appealable: vide Order 10, Rule 1 (w), Civil P.C. For reasons unexplained, no appeal was preferred by Shanker Lal from this order. In the meantime the trial of the suit proceeded on the merits and a decree was passed on 29th August 1927. In the view of the trial Court the plaintiff was entitled to a decree upon actual collections, but not on gross rental. Shanker Lal preferred an appeal to the learned District Judge from the decree, dated 29th August 1927. He set forth as a ground of objection in the memorandum of that appeal that the Assistant Collector had acted illegally in the exercise of his jurisdiction in granting a review by his order dated 30th May 1927.
3. The powers of an appellate Court to entertain an appeal from an order granting the review are limited. Order 43, Rule 1 (w), must be read subject to the limitations imposed by Order 47, Rule 7 (1), Civil P.C. The learned District Judge held that review had been granted by the trial Court upon insufficient grounds. It therefore reversed the order dated 30th May 1927 and restored the ex parte decree which had been passed on 30th September 1926.
4. Mr. Johari, on behalf of the defendant, contends that the learned District Judge in hearing an appeal from the final decree, had no power to reverse the order granting the review dated 30th May 1927. .
5. Section 105(1), Civil P. C, runs as follows:
Save as otherwise expressly provided no appeal shall lie from an order made by a Court in the exercise of its original or appellate jurisdiction; but where a decree is appealed from any error, defect or irregularity in any order affecting the decision of the ease, may be set forth as a ground of objection in the memorandum of appeal.
6. According to the natural and grammatical construction of the section a ground of objection can be preferred not from the order but from any error, defect or irregularity in any order. It was not therefore within the competence of the learned District Judge to reverse the order which was not under appeal before him. Further, in any view, it was not within his competence to set at ought an order except where there was an error, defect or irregularity affecting the decision of the case. It has been ruled by this Court in a long series of cases that the words 'affecting the decision of the case' mean 'affecting the decision of the case on the merits.' The proceeding before the Assistant Collector in connexion with the application for review was one which was distinct from and independent of the suit itself. There was nothing in common between the proceedings which came into existence by reason of the review being granted. The granting of the review was not a proceeding affecting the merits, but was a proceeding which ensured the hearing or the trial of the suit upon the merits. I am clearly of opinion that the learned District Judge has acted illegally in the exercise of his jurisdiction in entertaining the plea as regards the competency of the order dated 30th May 1927, while hearing an appeal from the final decree dated 29th August 1927.
7. I accordingly allow this appeal and set aside the order of the Court below. As the appeal has been disposed of on a preliminary point I remand the appeal to the lower appellate Court for disposal according to law.
8. Costs here and hereto will abide the event.