JUDGMENT

Jai Lal, J. - The respondents instituted a suit in the Court of the Senior Subordinate Judge, Mianwali, for a declaration that a sale by Mt. Jantan of land inherited by her from Muhammada, her son, was without consideration and necessity and, therefore, void against the rights of the plaintiffs who alleged that they were the heirs of Muhammada after the expiry of the life-interest of Mt. Jantan. An objection was raised by the defendants that proper Court-fee on the plaint had not been paid and it was pleaded that the sale was for consideration and necessity. On the merits the Senior Subordinate Judge held in favour of the plaintiffs, but on the question of Court-fee he was of opinion that a Court-fee stamp of Rs. 10 paid by the plaintiffs was insufficient and that the proper Court-fee was Rs. 20 under Article 22, Schedule 2 Court-fees Act, which provides that a plaint or memorandum of appeal in a suit by a reversioner under the customary law for a declaration in respect of an alienation of ancestral land shall bear a Court-fee stamp of Rs. 20. The plaintiffs' contention was that their suit was not for a declaration in respect of an alienation of ancestral land and, therefore, under Article 17(3), Schedule 2, Court-fees Act, stamp payable was as in an ordinary suit for declaration. The learned Judge, decided all the issues framed in the case together and passed the following decree on 5th October 1927:

I accordingly come to the conclusion that the alienation was without necessity and I grant the plaintiffs a decree with costs against the defendants declaring that the sale in dispute shall not affect the rights of the plaintiffs after the death of Mt. Jantan. The decree shall not take effect until the Court-fee has been made good. The requisite Court-fee should be put in on or before 20th October 1926.

2. This order was pronounced in the presence of the counsel for both parties. The deficiency in the Court-fee, as determined by the Senior Subordinate Judge not having been made good by the 20th October, the following note was made by the learned Judge below the decree:

Note.--Court-fee not paid as ordered. Decree shall not take effect.

3. Against the decree of 5th October the plaintiffs filed an appeal in the Court of the District Judge who held that an appeal lay to this Court because the order under appeal amounted to an order rejecting the plaint and that in either case an appeal lay to him. He held that the proper stamp on the plaint was Rs. 10 which amount having been already paid the order of the trial Court directing payment of additional Court-fee was illegal. He, therefore, accepted the appeal:

set aside the order of 20th October, "and ordered" that proper decree-sheet be prepared in accordance with law.

4. It appears, however, that the respondents before him had filed cross-objections. These the learned Judge declined to consider on the ground that the stage for filing cross-objections had not yet reached, that they (respondents):

can appeal against the order when a proper decree-sheet is prepared.

5. The defendants have filed this second appeal, but the plaintiffs did not appear before me, nor were they represented by counsel, and consequently I had to hear the appeal ex parte against them.

6. The first contention of the learned Counsel, who appeared on behalf of the appellants, is that no appeal lay to the Court of the learned District Judge from the order dated 5th October 1926, and that the plaintiffs not having appealed from the order of 20th October were precluded from appealing against the previous order which had in effect been superseded by the later order. I may note that the plaintiffs' appeal was expressly against the order of 5th October, but the learned District Judge has set aside the order of 20th October. Still I do not see any force in the contention of the appellants. The decree of the Senior Subordinate Judge was conditional that is the way in which the learned Judge himself interpreted it and the con