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 hav