1. Assuming that the Subordinate Judge was right in making the order directing a further written statement to be put in by the plaintiff (a question upon which we do not wish to express an opinion) we are clearly of opinion that that order was complied with so far as the information of the plaintiffs permitted.
2. We think the Subordinate Judge was altogether wrong and there was no ground whatever for proceeding under Section 113.
3. We, therefore, set aside the order of the Sub-Judge dismissing the suit, and direct that the suit be restored to the file and disposed of according to law.
4. The costs will abide and follow the event.
5. With reference to the question of costs, it was urged on behalf of the respondents that they should be allowed on the footing that this appeal is one against an order under Section 588(10) and not an appeal against a decree. No doubt in acting under Section 113, the Court may pass a decree if the circumstances admit of any decree being passed, but to operate as a decree the decision should be such as to come within the definition of that term in Section 2 of the Civil Procedure Code. The present order is not within the definition as no right or defence set up has been adjudicated upon. The view taken by this Court as to the effect of an order dismissing a suit under Section 102 in Gilkinson v. Subramani Aiyar I.L.R. (1898) 22 M. 221, and by other courts goes to support the above conclusion. Notwithstanding that the order is one dismissing the suit, it must have been described as an order only. Vakils' fees will be allowed as if it were an appeal against an order.
6. Now, as to the refund of the Court-fee to the appellant, the decision of the Subordinate Judge purports, in terms to be a decree. The appellants had, therefore, to appeal against it as such and pay the stamp duty on that footing. Section 13 of the Court Fees Act must be held to apply to the case and the stamp duty paid on the appeal will be refunded.