1. The following facts may be stated in order to make the judgment intelligible.
2. The appellant obtained a decree for sale which was affirmed on appeal on the 29th of November, 1917. When he made an application for a final decree, about three-years after passing of the appellate-decree, it was discovered that two of the defendants in the suit had died more than 90 days before the making of the application. The Court of first instance declared that the suit had abated. The appellant, thereupon, filed an application to have the abatement set aside. The respondents were heard and an order was made setting aside the abatement. Then followed, in duo course, a final decree for sale. Against that final decree for sale, the respondents appealed and the sole ground that they took for challenging the decree was that the Court of first instance was not justified in setting aside the abatement.
3. The learned District Judge wag of opinion that the Court of first instance should not have set aside the abatement and, decreeing the appeal, set aside the order making the decree final.
4. In this Court two grounds have been urged:
The first is that it was not open to the respondents to appeal against the final decree on the sole ground that the order setting aside the abatement was unjustifiable.
5. The second ground is that the order setting aside the abatement did not touch 'the decision of the case', and the lower Court was, therefore, not justified in setting aside the final decree passed in the case.
6. We have considered both the points. We think that we can satisfactorily dispose of this appeal on the second ground and in this view we need not decide the first point urged.
7. It appears that Section 105 of the Civil Procedure Code allows a party, who is not entitled to appeal against an interlocutory order, to challenge that order, when he is appealing against the decree in the case. But the interlocutory order, unless it affects the merits of the ease, will not be allowed to affect the decree. In other words unless the interlocutory order affects the merits of the case, it cannot be challenged. In the case of Puran Mal v. Tarif (1915) 13 A.L.J. 1089, an ex parte decree had been passed. It was later on set aside and when an appeal was filed against the decree in the suit, the order setting aside the ex parte decree was challenged. On the question whether it was open to the party appealing to attack the order setting aside the ex parte decree, the following remarks were made:
In our opinion the question of propriety of setting aside the ex parte decree was a matter which could not be considered by the learned Distriot Judge in appeal. No appeal is given by the Code from an order setting aside an ex parte decree. It cannot be taken exception to later on in a regular appeal because it did not affect the merits of the case.
8. We are also of opinion that the order setting aside the abatement did not affect the merits of the case. As we read Section 105 of the Civil Procedure Code the words 'affecting the decision of the case' are equivalent to 'affecting the merits of the case'.
9. The orders setting aside the abatement brought on the record the proper parties. The merits of the case had nothing to do with the array of the parties. The merits of the case related to the correctness or otherwise of the contentions of the parties placed before the Court. If this view be correct, the final decree could not be challenged on the sole ground that the order setting aside the abatement and trying the suit on its merits was a wrong order.
10. We allow the appeal, set aside the decree of the lower Appellate Court and1 restore that of the Court of first instance the respondents will pay the appellant's costs in this Court and in the Court below. The Counsel's fee in this Court will be calculated on the higher scale.