1. The facts relating to this appeal are as follows: One Ajazi Begam, who purchased a certain portion of the interest inherited in a house by one Ahmad Khan, brought a suit for partition against Ahmad Khan and his two sisters, Latifan and Fatma. A preliminary decree was passed, and it was followed by a final decree. After the final decree had been made the three defendants put in an application before the original Court asking that the ex parte decrees might be set aside on the ground that the defendants had no notice of the suit. The learned Munsif dismissed the application. The defendants filed an appeal. The appeal was allowed on the ground that after the preliminary decree for partition and before the final decree for partition was made, a fresh notice ought to have been issued to the defendants. In so holding' the learned Subordinate Judge professed to follow a ruling of this Court. In the result the learned appellate Judge set aside the order dismissing the application of the defendants and directed the Munsif to issue a fresh notice to the defendants and to take up the case at the stage preceding the preliminary decree.
2. It is against this order that this appeal has been directed.
3. A preliminary point is taken by Mr. Binod Bihari, the learned Counsel for the respondents, that no appeal lies.
4. We are of opinion that this contention is correct. The Civil Procedure Code does not allow a second appeal from an order passed when the appellate Court makes an order under Order 43, Rule 1, Clause (d), Civil P.C. It was however argued that the learned appellate Judge professed to 'remand' the case to the lower Court and therefore an appeal was permitted by Clause (u), Order 41, Rule 1. We are of opinion that this contention is not sound. Rule (u) was framed by this Court with a view to cover cases of remand which are not strictly covered by Order 41, Rule 23, Civil P.C. But when an order dismissing an application to set aside the ex parte decree is set aside, and the Court of first instance is directed to proceed with the suit, the order is not an order of 'remand' within the meaning of Clause (u), Order 43, Rule 1; this was held by a Bench of this Court in Moti Lal v. Nandan : AIR1930All122 .
5. Mr. Aziz, the learned counsel for the appellant, has asked us to take up the matter in revision. But supposing that the learned Subordinate Judge was not right in applying the ruling of this Court all that he committed was an error of law. He was possessed of jurisdiction to hear the appeal, and he did hear the appeal and passed an order which might or might not have been strictly correct. Even if the order was a wrong order he had jurisdiction to decide the case rightly and also wrongly. We hold that revision is not maintainable.
6. In the result the appeal is dismissed with costs including counsel's fee in this Court on the higher scale.