JUDGMENT
Norman Macleod, C.J.
1. The plaintiff filed a suit for recovering rent due for the year Samvat 1973 on the strength of a registered lease passed by the defendant to several co-sharers in the village, one of whom was plaintiff, and the issues were found in favour of the plaintiff, but the Judge found that he could not get a decree unless he obtained Letters of Administration to the estate of one Daulatsingji deceased, whose adopted son he claimed to be. The proper order then to nave made was to place the suit on the stayed list to give the plaintiff an opportunity of getting Letters. However the Subordinate Judge, no doubt, with the laudable desire of decreasing the number of suits on his file, dismissed the suit with costs, but gave liberty to the plaintiff to apply to have the dismissal set aside within a month from the date of the order, if any, passed in his favour by the District Court, Surat, for Letters of Administration to the estate of the deceased Daulatsingji.
2. The suit was dismissed on the 30th October 1918. It seems to us there was considerable delay in Letters of Administration being issued to the plaintiff, for it was not until the 30th July 1921 that on the plaintiff’s application the suit was restored to the board. The learned Judge seems to have considered that there was some doubt with regard to the order of the 30th October 1918, as he had recourse to Section 151 of the Civil Procedure Code, before he restored the suit to the file.
3. The suit then came on for hearing, and as the plaintiff’s claim was proved, a decree was passed for Rs. 105-13-0 and costs and further interest.
4. It has now been urged before us in revision that the order of the 30th October 1918, giving the plaintiff liberty to apply to have the dismissal set aside, was without jurisdiction, and therefore a nullity. But although, as we have already stated, the order was drawn in terms which afforded grounds for opposition to be raised to it thereafter, this is not a case in which the Judge has attempted to fetter the powers of a Court which might have to try another suit in the same matter between the parties. That occurred in Sukh Lal v. Bhilchi (1888) I.L.R. 11 All. 187, F.B. where the Judge dismissed the original suit, with this reservation that his order would not prevent the plaintiff from instituting a suit for possession of the one-third interest which was included in his claim in the original suit. It was decided by the Full Bench that this order was a nullity so that there was no necessity to appeal against it, and so as in the former suit the plaintiff could have asked for a decree for the one-third share then claimed, and the whole of the claim in that suit was dismissed, the decree in that suit was a decision within Section 13 of the Civil Procedure Code. It will be seen, therefore, that all that was decided by the Full Bench was that a Court in one suit cannot by giving leave to the plaintiff to file another suit bar the Court which tries that suit from deciding the question whether or not the subject-matter of the second suit was res judicata.
5. But here the question is whether the Court, where the application was made for restitution of the suit to the file, was entitled to question the power of the Court to make the order allowing restitution against which no appeal was filed. In our opinion the order of the 30th October 1918 was really a means of suspending the suit and at the same time discharging it from the list of suits on the file of the Subordinate Judge. We should not penalise the plaintiff for an error of that description. If the defendant objected to have the chance of the suit being restored held over his head, he should have appealed against that order. The merits are entirely in the plaintiff’s favour, and in no event do we think that he ought to be prejudiced by what at the most can be considered an error in procedure on the part of the Subordinate Judge. The rule, therefore, will be discharged with costs.
