1. In the case under appeal the learned Judge passed an order under Rule. 21, Order 11 which is appealable under Order 43, Rule 1. This Court on C.M.A. held that the order should have been one following upon non-compliance with Order 6, Rule 5 which presumably would be under Section 151. The question for our determination is whether when a Judge purports to act under an order which is appealable, an appeal lies, even though he ought to have acted on some other order which is not appealable. No doubt in considering whether an appeal is admissible the Court always looks to the substance rather than the form of the order so as not to deny a party his right of appeal. But it would be a very dangerous analogy to deny a party the right of appeal on the ground that only the substance and not the form can be looked into. Because, although the form may be technically wrong, until it is appealed against, it is substantially effective. That is to say, a party confronted with an order purporting to be under Rule 21, Order 11 is bound by that order unless he appeals against it, and it will be an absolute negation of justice when he does appeal to tell him that he has no appeal because it ought to have been an order under some other rule. This principle which in itself is fairly obvious is abundantly supported by the reported cases of which it is only necessary to cite Nasir Khan v. Itwari A.I.R. 1924 All. 144, Basumati Devi v. Tarithasami Dasi A.I.R. 1920 Cal. 569, B.N. Ry. Co. v. Behari Lal : AIR1925Cal716 and Gopal Singh v. Mangal Singh A.I.R. 1928 Lah. 341. The learned Judge who has decided the last of these cases puts the matter clearly and succinctly:
It has been urged by counsel for the respondent that the remand is not under Order 41, Rule 23 but under Section 151 and therefore no appeal lies. But the tight of appeal is determined by what the Court purported to do, and not by what the Court should have done and therefore this objection has no force.
2. We therefore find that an appeal lies and the Subordinate Judge will be directed, if necessary, to put his order into proper form. We say if necessary because it has been suggested that in the present circumstances this question has become academic; but that is a matter upon which we have no precise information. The appellant is allowed his costs in this appeal. The costs in the appeal before Curgenven, J., will abide the result.