R.C. Mitter, J.
1. This appeal is on behalf of the plaintiff in a suit for establishment of his right of way over a strip of land specified in the schedule annexed to the plaint, and for removal of obstructions there from and other reliefs. The suit was instituted against a number of defendants, one of them being defendant No. 17. Defendant No. 17 along with other defendants filed written statement in which he denied the right claimed by the plaintiff. In the course of the suit in the Court of first instance defendant No. 17 died, his legal representative being not brought on the record in time an application was made by the plaintiff to set aside the abatement as against his legal representatives. By order No. 42, dated January 6, 1931, the learned Munsif refused to set aside the abatement, the holding that the affidavit filed on behalf of the plaintiff was vague, indefinite and unreliable. After that the suit proceeded and the learned Munsif went into the merits of the claim and held that the plaintiff had not succeeded in establishing his right of way.
2. The plaintiff preferred an appeal which was heard by the learned Subordinate Judge, Fifth Court, Dacca. In the grounds of appeal the plaintiff not only challenged the other findings of the learned Munsif as appearing in his judgment but he also attacked the correctness of Order No. 42, dated January 6, 1931, by which the Munsif refused to set aside the abatement. At the time of hearing of the appeal a preliminary objection was raised. It was stated that in the absence of the legal representatives of the defendant No. 17, the appeal was incompetent. It appears that the Pleader appearing on behalf of the plaintiff-appellant wanted to raise before the learned Subordinate Judge the point that Order No. 42 was not a correct order, but the learned Subordinate Judge remarked that inasmuch as that order was appealable order and no independent appeal had been filed against it in proper time, he was not entitled to touch or reopen that order in the course of an appeal against the decree. Having therefore held that the order of the Munsif, dated January 6, 1931, was conclusive between the parties, he held that the appeal was incompetent and could not proceed in the absence of the legal representatives of defendant 17. Now I agree with the learned Subordinate Judge that the appeal as also the suit would be a defective suit and appeal in the absence of the legal representatives of the defendant No. 17. But I do not quite agree with the learned Subordinate Judge in the view that he has taken that the plaintiff was not entitled to challenge the correctness of Order No. 42 in an appeal against the decree. Section 105, Sub-section (1) of the Civil Procedure Code, does not make any distinction between an appealable order and a non-appealable order. All that section says is that if there is an order of remand made, that order cannot be challenged in an appeal against the decree. All other orders 'affecting the decision of the case' passed in a suit can be challenged in an appeal against the decree whether those orders are appealable or not. The only question, therefore, before me is whether, the order refusing to set aside the abatement is an order which affects the 'decision of the case.' It has been held that when an order had been made in the course of a suit setting aside an abatement, such an order cannot be challenged in an appeal against the decree under the provision of Section 105 of the Code inasmuch as it is an order which does not affect the decision of the case, the words 'decision of the case' having been interpreted to be a decision on the merits. The principle on which those cases proceed is that an order setting aside an abatement under Order XXII, Rule 9, does not affect the decision of the case on the merits, because it re-opens the hearing of the case on the merits. An order refusing to set aside an abatement, however, stands on a different footing. That order has the effect of dismissing from the suit the legal representatives of the deceased person, who are not brought in time. I agree in this respect $-. with the judgment of Mukerji, A.C.J., and Bennet, J., of the Allahabad High Court in the case of Badri Prasad v. Amjid Ali : AIR1933All294 . The said learned Judges observed thus:
We are of opinion that this argument of the learned Counsel is not sound. It is true that no second appeal lies from an order but an order may be questioned in a second appeal, if it affects the decision of the case. What affects the decision of a case has been stated in many decided cases under different circumstances. An order setting aside an abatement does not affect the merits of the case because the result is that the parties are before the Court and the Court adjudicates in the presence of the parties.' Everyone of the parties is present there to represent his case and, therefore, the decision is not affected. But where an abatement is not set aside, the result is that certain parties are dismissed from the case, and so far parties go out of the case, the other party has n'6 remedy left. The decision, therefore, is given not on the merits but on a purely technical ground. We are of opinion that in second appeals the order refusing to set aside the abatement may be questioned
3. I hold, therefore, that the learned Subordinate Judge was not right in holding that Order Mo. 42 passed by the Munsif could not be challenged before him in an appeal from the decree. I accordingly Bet aside the judgment and decree of the learned Subordinate Judge and remand the case to him in order that he may decide the question as to whether Order No. 42 of the Munsif has to be set aside or confirmed. If he agrees with that order, the appeal will be dismissed by him as being incompetent. If he sets aside that order he would hear the appeal on all points raised before him in the presence of the legal representatives of defendant No. 17 to whom proper notice must be given before the appeal is finally heard. The result is that this appeal is allowed. Costs to abide the result.
4. The decision of the learned Subordinate Judge on the correctness of Order No. 42 must be arrived at on the materials which are on the record.