The legal point established is the inapplicability of 0.43, R.1, C.P.C. read with 0.43, R.2 to orders passed under S.104(2) and the court's discretion to convert the C.M.A. into a C.R.P. if there appeared to be any merits in the appeal.

1. This C. M. A. is by the 5th defendant who was the appellant in C. M. A. 127 of 1954 in the court below. That C. M. A. 127 was dismissed on 19-6-1956. The 5th defendant applied on 29-6-1956 to have it restored to file. The court below however rejected that application on 19-9-1956. Hence this C. M. A.

2. Learned counsel for the respondent-plaintiff raised a preliminary objection that this C. M. A. is not maintainable. The appellant says that this appeal must be held to have been filed under 0.43, R.1, C.P.C. read with 0.43. R.2. But the rule is inapplicable to orders passed under S.104 (2), This rule has been held to apply to all orders passed by the court in its appellate capacity, not alone disposing of the C.M.A. on the merits but also in connection with it. See A.I.R. 1941 All at 338. That was case where the rase had abated and a petition to set aside the abatement was dismissed and the C.M.A. in the High Court against the order of dismissal was questioned as incompetent. The learned judge held that the words of S.104 (2) were perfectly general and there was no reason to restrict the meaning to an order deciding the C.M. A. on the merits. I respectfully agree.1 have therefore to hold that the C.M. A. here is not maintainable.

3. But I would not have hesitated to convert the C.M. A. into a C.R.P. if there appeared to be any merits in the appeal. Looking into the records however, it would seem as though the attempt here is only to reopen a decree of the trial court long after its enforcement by sale in execution in favour of the plaintiff decree-holder, and at the instance of a subsequent encumbrance over the property charged under the decree. The plea is that the 5th defendant had no idea of the suit or the decree or execution proceedings therein until years later when the property was to be delivered over in execution. His laches in regard to C. M. A. 127 of 1954 in the lower court cannot also be ignored.

4. On the whole there is no merit in the appeal either. It is therefore dismissed with costs.