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 suit was posted for arguments on this issue and was adjourned to the 4th April, 1944, on which date the plaintiff filed a petition to amend the plaint so as to clarify her case. This petition involved a series of stay orders, since the amendment was refused and the matter was taken up on revision to the High Court, the revision petition being finally dismissed. The matter came up for arguments again on issue No. 2 on the 14th February, 1945, when at the request of the plaintiff’s pleader it was adjourned to the 19th February. On that date a further adjournment was refused and the plaintiff’s lawyer reported no instructions and withdrew. The plaintiff who was present in Court was asked if she was prepared to reply to arguments on the second issue. She said that she wanted to engage another pleader. The arguments on behalf of the first defendant were then heard, and while these arguments were proceeding the plaintiff left the Court and her absence was recorded. The learned Subordinate Judge however did not proceed to dismiss the suit for default. He heard the arguments out and then gave a considered finding on issue No. 2 to the effect that the plaintiff had no cause of action to maintain the suit on her own admissions as contained in paragraphs 3 and 4 of the plaint. In view of this finding a further trial of the issues was held to be unnecessary and the suit was dismissed. This decision purports to be a decision on the merits. Nevertheless the plaintiff tried to get the suit restored to file by means of an application under Order IX rule 9, which was dismissed. She filed a Civil Miscellaneous Appeal against the dismissal of that application and at the the same time filed the present appeal against the decree treating it as a decree on the merits. The Civil Miscellaneous Appeal failed.

It is argued for the respondents that on the authorities it must be taken that when the plaintiff is absent, even if the Court purports to decide the suit on the merits and dismisses it, the decision must be regarded as a dismissal for default, the remedy against which is an application under Order IX, rule 9 and that if the decision is really to be regarded as dismissal for default, there can be no question of an appeal against the decision as a decision on the merits. We are not concerned here with the class of cases where the Court decides the suit in circumstances which justify the conclusion that the plaintiff though physically present, was not actually appearing for the purpose of conducting the case. Here the plaintiff was physically absent during the later portions of the arguments of the first defendant’s lawyer and at the time when the case was closed. We may take it that the learned Subordinate Judge should in such circumstances have passed an order dismissing