Aikman and Karamat Husein, JJ.
1. This is an appeal from an order of remand. A preliminary objection to the hearing of this appeal is raised by the learned vakil for the respondent. It appears that the order of remand now appealed against was passed on the 12th of November 1906. Under that order the case went to the Court of first instance, and was by that Court decreed in favour of the plaintiff respondent on the 28th of January 1907. The present appeal, though it bears an endorsement of the stamp reporter, dated the 19th of January 1907, was not presented until the 29th January 1907, one day after the decree in plaintiff's favour had been passed.
2. The appellants filed no appeal from the decree which had been passed against them. In support of his objection the learned vakil for the respondent relies on a decision of the Calcutta High Court in Madhu Sudan Sen v. Kamini Kanta Sen (1905) I.L.R. 32 Calc., 1023, and on a decision of this Court in Salig Ram v. Brij Bilas (1907) I.L.R., 29 All. 659. These decisions support the preliminary objection taken. Were the matter res integra there might be something to be said in appellants' behalf ; but we are bound by the decision of this Court. When the case went back to the Court of first instance, it was heard in the presence of the defendants, who, we are told, adduced evidence. We consider that the defendants, if they intended to appeal from the order of remand, might well have asked the Court of first instance to defer hearing the case until their appeal against the order of remand had been disposed of; but they did not do so. We are bound by the decision in the case of Salig Bam v. Brij Bilas, mentioned above. We, therefore, sustain the preliminary objection and dismiss the appeal with costs.