This appeal arises out of a judgment which purports to dismiss the appellant’s suit on a preliminary issue.. An objection was raised to the maintainability of the appeal based on the contention that the decision must really be regarded as one of dismissal for default under Order XVII rule 2 of the Code of Civil Procedure, and that in such circumstances the only remedy is by way of an application under Order IX, rule 9 to set aside the dismissal, and that such an application having been made in this case and having been rejected no appeal against the decree in the suit can lie.

The plaintiff appellant filed the suit against her two brothers praying that the first defendant be directed to deliver to the plaintiff certain moveable properties or pay the value thereof. The suit was filed in the Court of the Subordinate Judge of Bezwada and was transferred to the Court of the Subordinate Judge of Masulipatam. In the latter Court the contention was taken by the first defendant that issue No. 2 which is “whether the allegations in the plaint disclose any cause of action entitling the plaintiff to sue as heir to late Lakshmikantamma” should be tried as a preliminary issue. The