The question of maintainability of an appeal cannot be considered in an application under Order XLI, Rule 19 of the Code of Civil Procedure, which deals with the restoration of appeals dismissed for non-prosecution.

( 1 ) ORIGINAL Suit No. 247 of 1995 was decreed by the learned Civil Judge (Junior Division), hatbras against Gram Panchayat, Hatisa, Bhagwantpur, represented by Pradhan Upkhand mursan Khand. Hathras. district Aligarh on 6th March. 1997. An appeal, being Civil Appeal No. 57 of 1997 was preferred by Smt. Asharfl Devi, wife of Sri Sukh Deo Sharma, resident of village hatisa Bhagwantpur as Pradhan, Gram Panchayat, Hatisa, Hathras, district Aligarh. The appeal was dismissed for non-prosecution by the appellate court by its order dated 14th September. 1998. An application for setting aside the said order was filed by the appellants, which was registered as Misc. Case No. 58 of 1998. Against the said application, the petitioner filed his objection that the appeal at the instance of the appellant, would not be maintainable since the appellant was not the Judgment debtor. Inasmuch as the appeal can be preferred by the Judgment debtor, Gram Panchayat represented by the Pradhan, whereas the Pradhan in his personal capacity has filed the appeal. The learned appellate court by its order dated 17th November. 1999 passed by the Additional District Judge XIth Court, Aligarh allowed the said application for restoration. Mr. S. K. Singh. learned counsel for the petitioner contends that the said order was a one line order without adverting to the objection raised on behalf of the petitioner about the maintainability of the appeal while restoring the appeal. Therefore an application for review was filed by the petitioner. which was numbered as 25ka in Civil Appeal No. 57 of 1997. By an order dated 27th July, 1999, the said review application has since been dismissed by the learned additional District Judge, XIth Court. Aligarh. It is this order which has since been challenged.

( 2 ) MR. S. K. Singh had relied on a decision in the case of Vrindaban and others v. Gaon Sabha, omri Kalan, Basti, 1980 ACJ 13 : 1980 RD 40, in order to contend that the appeal is incompetent by the appellant Pradhan herself.

( 3 ) I have heard learned counsel for the petitioner at length.

( 4 ) THE appeal was dismissed for non-prosecution. The same is liable to be restored under Order xl1, Rule 19 of the Code of Civil Procedure, if sufficient cause is shown. Whether the appeal is maintainable or not cannot be a consideration while considering the application under Order xli, Rule 19 of the Code. The question of maintainability is a question of law and not of fact. A review as provided in Section 114, read with Order XLV11 of the Code, cannot be maintained against an error of law. Review can be asked for if there is an error apparent on the face of the record, which is admittedly an error of fact. However, erroneous a decision may be, the same cannot be reviewed if the error is an error in law.

( 5 ) IN the present case, since an application was made for re-admlsslon of the appeal dismissed for non-prosecution, there was no scope for deciding as to whether the appeal was maintainable or not. While considering said situation, the main question which is to be looked into is as to whether the appellant has been able to make out sufficient cause that he was unable to appear when the matter was called on. The question of Jurisdiction exercised by the Courts below under order XLI, Rule 19 of the Code is confined only to that extent. It cannot decide the appeal on merit. The question of maintainability is a question of merit of the appeal, that too only on the question of description of the Judgment debtor. Whether such description can nonsuit the appellant is a question which requires determination on merit, which cannot be decided in a preliminary manner, that too in a proceeding under Order XLI, Rule 19 of the Code. One of the grounds in the review application was that the Court did not advert to the objection raised by the petitioner. Mr. Singh had contended that the objection was confined to the maintainability of the appeal relying on the decision cited by