King, J.

1. This is an appeal by the first defendant against the judgment of the learned Subordinate Judge decreeing O.S. No. 47 of 1943, as against the appellant. The appeal is filed under Order XLIII, Rule 1(6)of the Code of Civil Procedure which provides a right of appeal from an order under Rule 10 of Order VIII, pronouncing judgment against a party. The judgment does not say specifically that it is being pronounced against the first defendant under that order; and because this is so, a preliminary objection was raised on behalf of the plaintiff that no miscellaneous appeal lay and that the appellants only right was to file a regular appeal and pay the required court-fee. We have found against this preliminary objection. Although the language of paragraph 2 of the judgment is somewhat ambiguous and refers not only to the failure of the appellant to file his written statement in time, but also to the fact that at the trial on the second February 1944 he did not appear, it seems clear to us that this judgment must be regarded as essentially passed against the appellant because he did not file his written statement by the 31st January, as called upon to do by the Court. The