Alfred Henry Lionel Leach, C.J.

1. In 1933 an application was made by 20 worshippers of the Sri Alagiananibirayar temple in the Tinnevelly District to the Madras Hindu Religious Endowments Board for an order directing an inquiry to be held into the question whether the Board should frame a scheme for the administration of the temple and its endowments. The Board held an inquiry and as the result of the investigation decided that it was not necessary to frame a scheme. The applicants then filed a suit in the Court of the District Judge of Tinnevelly with the object of obtaining the settlement of a scheme under a decree of the Court. The suit was defended by the trustee, who is the respondent in this appeal. It is unnecessary to set out all the objections to the suit. It is sufficient to say that the main objection was that the Court had no power to frame a scheme. On this question a preliminary issue was framed and was answered by the District Judge in favour of the plaintiffs. Thereupon the respondent applied to this Court to reverse the order in exercise of its revisional powers. The application was heard by Venkataramana Rao, J., who decided that the District Judge had erred in holding that the suit lay. In addition to allowing the petition the learned Judge dismissed the suit. On the order being communicated to him the District Judge passed a formal decree dismissing the suit with costs. The appeal is from that decree. Before proceeding to discuss the merits of the appeal it is necessary to dispose of a preliminary objection raised by the respondent, who says that the order of Venkataramana Rao, J., was final and therefore the appeal does not lie.

2. Section 115 of the Code of Civil Procedure which confers upon the Court its power of revision states that if the Subordinate Court appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity, the Court may make such order in the case as it thinks fit. The section only contemplates an order which is appropriate to the application; and the order of Venkataramana Rao, J., dismissing the suit was not appropriate. Having decided that the District Judge had erred on the preliminary issue he should have set aside his ruling and directed the District Judge to dispose of the suit in accordance with law and not to have dismissed the suit himself. The order of Venkataramana Rao, J., was an interlocutory order and the preliminary objection must be decided on this footing.

3. In support of his contention that the decision of Venkataramana Rao, J., is final the learned Advocate for the respondent has quoted Ram Kirpal v. Rup Kuari (1883) L.R. 11 IndAp 37 : I.L.R. 6 All. 269 , Mubarak Hussain v, Bihari I.L.R. (1884)All. 306 and Hook v. Administrator-General of Bengal (1921) 40 M.L.J. 423 : L.R. 48 IndAp 187 : I.L.R. 48 Cal. 499 , but as the present case is clearly governed by Section 105 of the Code of Civil Procedure they are not in point and I do not propose to pause to examine them. That section says:

(1) Save as otherwise expressly provided, no appeal shall lie from any, order made by a Court in exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.

(2) Notwithstanding anything contained in Sub-section (1), where any party aggrieved by an order of remand made after the commencement of this Code from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.

4. Authority is given here to the Court to set aside an erroneous order affecting the decision of a case, unless it be an order of remand from which an appeal lies and no appeal is filed Sub-section (2) appeared in the Code for the first time