JUDGMENT Tudball and Muhammad Rafiq, JJ.
1. The question of law which arises in this case for decision is covered by a decision of a Divisional Bench in Muhammad Niaz Khan v. Jai Ram (1919) I.L.R. 41 All. 503 and also covered by a decision of the Calcutta High Court in Crowdy v. Reilly (1912) 17 C.W.N. 554. The ruling of the Madras High Court (1902) 13 M.L.J. 370 which has been mentioned is a very brief decision which gives no reasons. We prefer to follow the ruling of this Court, and of the Calcutta High Court which recommend themselves to us and we therefore allow this appeal and set aside the decree of the courts below. The case will have to go back to the court of first instance for trial on the merits, it having been dismissed by that court on a preliminary point law. We, therefore, order the record to be returned to that court with directions to restore it to its file on its original number and to proceed to hear and determine it according to law. Costa of this appeal will be costs in the cause.