1. We do not think there is force in the preliminary objection that no petition lies to the High Court under Rule XX of the Ganjam and Vizagapatam Agency rules on the ground that the Agent has acted under Rule XVIII. In this contention the learned pleader for the respondent is no doubt supported by Jagannatha v. Gopanna I.L.R., (1898) Mad., 229 but with all respect to the learned Judges who decided that case we are unable to accept that decision as correct. They give no reasons. Rule XVIII only says that the Agent may summarily dismiss an appeal without issuing notice to the respondent. But such an order of dismissal as it disposes of the rights of the parties would be a decree and Rule XX says that the High Court in a proper case may direct the Agent to review his judgment. We hold that we have jurisdiction to entertain this petition.
2. The Agent does not give any reasons in support of the order of dismissal. But the Special Assistant Agent who originally heard the suit dismissed it on the ground that Section 244 of the Civil Procedure Code of 1882 was a bar to the plaintiff's claim. The section itself is not in force in this agency. But supposing that the principle of that section could be applied which we do not decide, the third defendant whose claim was upheld in execution proceedings was not a party to the suit and therefore he could not invoke the principle of that section as a bar to the plaintiff's suit.
3. We set aside the order of the Agent and direct him to review his judgment in the light of the above observations.
4. Costs will abide the result.