P. CHAKRAVARTTI, CJ.

( 1 ) THIS appeal falls to be determined on a short point, but in the course of the argument, a wide ground was covered by the parties with a considerable citation of authorities on both sides.

( 2 ) THE two main questions in the appeal are whether in setting aside a decree by which he had himself allowed a part of the Respondent's claim in the suit and disallowed the rest and restoring the suit to the list for further trial, G. K. Mitter, J. was right and, secondly, even if he was not right, whether an appeal at all lies from his order.

( 3 ) THE facts are as follows : The Respondent firm brought a suit against the Appellant firm for specific performance of a contract of sale by delivery of the goods sold and, in the alternative, for the refund of a sum of Rs. 35,200/- which had been paid as the full price of the goods, as also a further sum of Rs. 1,32,559/- as damages. The Appellant's defence was that it had always been ready and willing to deliver the goods, but it was the Respondent who had asked for a cancellation of the contract and a refund of the price paid on the plea that the goods were no longer required. The contract, it was said, had thereupon

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