Knox and Blair, JJ.
1. To the suit out of which this appeal, has arisen the original parties were Mewa Ram, plaintiff, and Tej Singh and others, defendants. The suit was decreed ex parte. An application, however, was made under Section 108 of the Code of Civil Procedure to have the ex parte decree set aside, and the case reheard. This application was successful. Upon the suit being reinstated the present respondent, Chabeli Ram, prayed that his name might be brought on the record, alleging that an assignment had been made in his favour by the plaintiff of the plaintiff's right. The plaintiff consented to Chabeli Ram's name being substituted instead of his own. The defendants, on the other hand, objected, contending that the transfer was a fictitious one; the application under Section 372 was accordingly disallowed, and on the same day, but after the order above-mentioned had been passed, the suit was dismissed. Chabeli Ram then appealed from the order rejecting the application made under Section 372; this appeal was allowed, and his name was brought on the record. Apparently some confusion ensued which has not been explained, as the matter before the lower appellate Court was treated when the appeal went to hearing as an appeal from the decree. The result was that an order was passed under Section 562, remanding the suit to the Court of first instance for decision on the merits; and it is at this stage and from this order that this first appeal from order has been brought.
2. A preliminary objection has been taken before us that an appeal does not lie, and that the order passed under Section 372 was not open to appeal. On looking back, however, into the record of the case we find that the lower appellate Court has dealt with the decree which was passed in the suit, and from which an appeal undoubtedly did lie under Section 540 of the Code of Civil Procedure; so that what we have to consider now is really whether the lower appellate Court could have entertained any appeal against the order refusing to substitute-the respondent as plaintiff in the cause.
3. Section 588, Clause (21) provides that an appeal shall lie from an order disallowing an objection under Section 372; but as the section does not allow appeals from any orders except those specially set out in Section 588, it follows and has been held that no appeal lies under Section 588 of the Code from an order allowing an objection under Section 372. The case before us is such an order. But we were referred to the case of Moti Ram v. Kundan Lal (1900) I.L.R. 22 All. 380. The learned Judges who decided that case viewed the order which was before them as an order which adjudicated on the representative right claimed by the applicant under Section 372, and therefore amounting to a decree, as that word is defined in Section 2 of the Code. They appear in arriving at this decision to have been influenced by the case of Indo Mati v. Gaya Prasad (1896) I.L.R. All. 142. The case of Indo Mati v. Gaya Prasad has been considered by the Calcutta High Court in the case of Lalit Mohan Roy v. Shebock Chand Chowdhry (1900) 4 C.W.N. 403. That Court held that the case before them was as to its facts widely different from the facts disclosed in Indo Mati v. Gaya Prasad. They had before them no question relating to the execution of a decree, inasmuch as no decree had at the time when the application was disallowed been passed, and no final decision in the suit had been given. The ratio decidendi therefore in Indo Mati v. Gaya Prasad did not apply to the case before them, and was, in their opinion, clearly distinguishable.
4. In the case before us, while it is true that there had been an ex parte decree, that ex parte decree had been set aside, and had therefore become non-existent. While it was so non-existent Chabeli Ram filed his application. The refusal to allow his name to be brought upon the record, while it may have been a formal expression of an adjudication of a right claimed by him, did not, so far as the Court expressing it, decide the suit. The decision of the suit resulted immediately from the order under which the suit was dismissed--an order passed after the order adjudicating upon Chabeli Ram's claim to be brought into the suit. The case of Indo Mati v. Gaya Prasad is really an authority which holds that no appeal lay from the order passed under Section 372, and it is in this respect against the respondent Chabeli Ram. In the case reported at page 380 of the I.L.R. 22 All. 372, there was a decree extant, and the application under Section 372 was made after that decree had been passed : no attempt moreover had been made by the applicants to have their names brought upon the record in the Court of first instance. In any case the facts in Moti Ram v. Kundan Lal are not the same as the facts before us. Chabeli Ram headed his petition of appeal as an appeal from the whole of the decree passed by the Subordinate Judge; in Moti Ram v. Kundan Lal the applicant had only asked to be allowed to appeal, and it was with the order disallowing that application that this Court then dealt. This is manifest from the terms of the final order which run thus: 'We direct that the applicants be now brought on the record, and we remand the record to the Court of the District Judge with orders to decide whether the memorandum of appeal, dated the 23rd August, 1897, should or should not be admitted; and if admitted, to hear and decide the appeal according to law.'
5. It is enough for us to show that the facts in that case differ from the facts before us; they also differ from the facts in Indo Mati v. Gaya Prasad, and our decision is based upon these two points--(1) that no appeal is allowed by Section 588 Sub-section (21), from an order allowing an objection under Section 372; and secondly, that the order passed in the present case was not a decree within the meaning of Section 2, viz. an adjudication so far as regards the Court expressing it which decided the suit pending before the Court at the time when the order was passed.
6. We decree the appeal with costs, and set aside the judgment of the lower appellate Court.