1. This is an appeal against a decree of the Subordinate Judge of Gorakhpur, dismissing the appellants' suit under Order 11, Rule 21 of the Civil Procedure Code. The facts briefly are these: The appellants sued to obtain a declaration that a mortgage made by their father, the Defendant No. 2 in the suit, in favour of the Defendant No. 1 and the mortgage decree, obtained by the Defendant No. 1 against the father were 'not binding on the appellants and their property. The Defendant No. 1 alone defended the suit. Before he filed a written statement he obtained permission of the Court to deliver interrogatories to the plaintiffs to answer certain questions. There interrogatories were served by a peon of the Court on the 28th of April 1920. The report is that the guardian of the minor plaintiffs was a pardanashin lady, that one of the plaintiffs came out of the house and reported that his mother knew nothing about the case. The peon thereupon affixed the notice on the outer door of the house. On the 11th of May 1920 the defendant filed his written statement. Apparently he did not find himself handicapped for want of answers to the interrogatories which he had delivered. Issues were fixed in the case on the 29th of November 1920 and a date was fixed for final hearing, some time early in 1921. After this' the case was never actually ripe for bearing. Applications were made for examination of witnesses by issue of commissions and these commissions, from time to time, came back unserved. A talk of compromise arose between the parties and the case was adjourned from time to time to get the compromise filed in Court. Ultimately on the 29th of April 1922 an application was made on behalf of the Defendant No. 1 to the effect that the plaintiffs had been called upon to answer the interrogatories, that they did not answer them and therefore their plaint was liable to be struck off. This application is printed at p. 11 of the record. The Court was asked by this application to take action under Order 11, Rule 21 of the Civil Procedure Code. The plaintiff's pleader, thereupon asked for a week's time and the Court adjourned the case to the 6th of May 1922 when answers to the interrogatories were actually filed in Court by the appellants. On this date, viz., 6th of May 1922 the Court after hearing the parties passed an order dismissing the suit as already stated.
2. The question before us is whether this order of the Court below was justified. Without going into other aspects of the case it is sufficient to say that there was as a matter of fact, no order as contemplated by Order 11, Rule 21 of the Civil Procedure Code. An order under that rule can be passed only when there is a previous order under Rule 11, requiring a party to answer interrogatories. There are two stages in which the application proceeds. The first is indicated in Rule 1. Under that rule a party simply delivers certain interrogatories to be answered by the other party. The other party may or may not comply with the request. When the party to be questioned fails to answer interrogatories, the party interrogating has a right to come before the Court and to obtain an order under Rule 11 for an answer. It is then that the Court decides whether the party interrogated, must answer or not. The party interrogated can show cause against is answering the interrogatories all of the them or some of them. It is when that the Court has ordered certain interrogatories to be answered and there is a failure that the question arises whether the failure should be punished and the order enforced by the provision of Rule 21. From the facts above it is clear that no order having been passed in this case under Order 11, Rule 11 of the Civil Procedure Code, the Court was not in a position to dismiss the suit on the ground of the plaintiffs being in contempt.
3. The result is that the appeal succeeds and the decree of the Court below must be set aside. As regards costs we think that the question arose out of an interlocutory order and the costs must abide the result.