JUDGMENT Woodroffe, J. - This is a suit to recover rent in arrears in respect of a certain property. It was instituted against five Defendants. The first three Defendants are described as the tenant-Defendants. The holding of which they are alleged to be tenants was previous to the suit put up to sale at the instance of the Plaintiffs' benamidar, the fifth Defendant. The fourth Defendant is the auction-purchaser of the holding and is alleged to have purchased it on behalf of and to be a benamidar of the first three Defendants. The plaint prayed for a decree against the alleged tenant-Defendants for the sum of Rs. 133-7-9 alleged to be due (1) I. L. R. 22 Cal. 981 (1895). for rent and for such further relief as the Plaintiffs might be found entitled to. 2. The alleged tenant-Defendants denied that they had any concern with the land or that the fourth Defendant was their benamidar. The fourth Defendant supported them stating that he was the sole owner and the real tenant, and that he was not a benamidar for the first three Defendants. He denied that any rent was due to the Plaintiffs and both sets of Defendants asked that the suit might be dismissed with costs. 3. Though the Plaintiffs did not directly seek any relief against the fourth Defendant, inasmuch as their case was that he was a mere benamidar for the first three Defendants, the alleged tenants, their object in impleading him was apparently to have it declared in a suit to which the fourth Defendant was a party that the first three Defendants were their tenants and that the fourth Defendant was not a tenant. 4. The learned Munsif was of opinion that the Plaintiffs' motive in this was that if they succeeded in establishing their allegation of tenancy against the first three Defendants, they might be able to rely on a kabuliyat purporting to be executed by the predecessors, and to the knowledge of the first three Defendants, before the passing of the Bengal Tenancy Act, whereas if the auction-purchaser were the fourth Defendant, by the sale a new contract was entered into and the former contract for paying interest on arrears at a rate greater than that provided in sec. 67 of the Bengal Tenancy Act became null and void. 5. However this may be, what we find occurring is this. 67 of the Bengal Tenancy Act became null and void. 5. However this may be, what we find occurring is this. The suit was instituted on the 18th of November 1899. The Plaintiffs did not serve the summons on the Defendants and obtained an ex parte decree against the persons whom they desired to establish to be their tenants, namely, the first three Defendants--a decree, which if it did not in fact negative, might be relied on to negative, the claim of the fourth Defendant to the holding in suit. 6. The holding which has been found in fact to belong to the fourth Defendant was sold in execution of the ex parte decree for rent said to be due by the first three Defendants and was purchased by the decree-holders for ten rupees. Thereupon, the fourth Defendaut applied under sec. 108 and under secs. 244 and 311 of the CPC that the ex parte decree might be set aside and also, that the sale held thereunder which was alleged to have taken place after fraudulent suppression of the sale proclamation might be set aside. 7. In the order-sheet it appears that the decree-holder's pleader stated that having regard to the plea of the fourth Defendant he did not feel inclined to oppose the applications. The suit was accordingly restored on the 5th of February 1901, and the sale was set aside. 8. The suit was then heard by the learned Munsif who expressing a doubt as to the bond fides of the Plaintiffs held that the first three Defendants had no connection with the jumma in suit, and that the fourth Defendant was not their benamidar, but the tenant of the Plaintiffs to whom arrears of rent were due. The Munsif accordingly decreed the suit with costs against the fourth Defendant and dismissed it with costs as against the first three Defendants. 9. The Plaintiffs appealed from this decree to the learned District Judge, contending, as they had done before, that the first three Defendants and not the fourth Defendant were their tenants. 10. The learned District Judge states in his judgment that in his opinion this is a most curious case. 9. The Plaintiffs appealed from this decree to the learned District Judge, contending, as they had done before, that the first three Defendants and not the fourth Defendant were their tenants. 10. The learned District Judge states in his judgment that in his opinion this is a most curious case. He held that it was a rent suit, that the fourth Defendant "had nothing to do with the case" though he had been impleaded by the tenant-Defendants themselves with the object I have above stated, and that no decree having been made against him, he was therefore not entitled to apply under sec. 108 and claim a rehearing. Accordingly, without adjudicating upon the merits of the case, as to which he states in his judgment he was not concerned, he proceeded to deal, under sec. 591 of the Code, with the order restoring the suit: and holding that such order and all proceedings thereunder including the decree given against the fourth Defendant on the basis of his being the tenant were ultra vires, he allowed the appeal and set aside such order, proceedings and decree of the Munsif and made the fourth Defendant pay the costs of the appeal. The result of this was that the ex parte decree was restored. 11. The learned District Judge states that though it is true that no appeal against the order under sec. 108 restoring the suit would lie to him (as is the case such order not being appealable), "he could find nothing and no ease had been cited to him to bar his power to deal with the matter under sec. 591 of the Code." 12. In this the learned Judge was clearly in error. It has been held by this Court, Chintamony Dassi v. Raghu Nath Sahoo I. L. R. 22 Cal. 981(1895), Musst. Kariman v. A. H. Forbies 1 Cal. L. J. 27 notes (1905), by the Allahabad High Court, Gulab Kunwar v. Thakur Das I. L. R. 24 All. 464 (1902), Tasadduk Hussain v. Hayatunnissa I. L. R. 25 All. 280 (1908), and by the Bombay High Court, Balahi v. Sangh I. L. R. 27 Bom. 162 at p. 188 (1902), that the words of sec. L. J. 27 notes (1905), by the Allahabad High Court, Gulab Kunwar v. Thakur Das I. L. R. 24 All. 464 (1902), Tasadduk Hussain v. Hayatunnissa I. L. R. 25 All. 280 (1908), and by the Bombay High Court, Balahi v. Sangh I. L. R. 27 Bom. 162 at p. 188 (1902), that the words of sec. 591, " any error, defect or irregularity " in an appealable or non-appealable order affecting the decision of the case "mean error, defect or irregularity affecting the decision of the case with reference to the merits of it." It has also been held, Tasadduk Hussain v. Hayatunnissa (4), Chintamony v. Raghu Nath (1), that an order under sec. 108 of the Code setting aside a decree passed ex parte is not an order affecting the decision of the case, i.e., affecting the decision of the case upon the merits. The alleged wrongfulness of such an order cannot, therefore, be urged as a ground of objection in an appeal from the decree in the suit under the provisions of sec. 591 of the Code. This part of the case was not, I think, very seriously questioned, though an attempt was made to distinguish those cases from the present one on the ground that in the former there was no question as to the jurisdiction to make the orders complained of, however much they may have been otherwise open to objection, whereas in the present case it is submitted that the learned Munsif acted without jurisdiction in that he had no power to restore the case under sec. 108 except upon the application of the person against whom a decree had been made and that the fourth Defendant was not such a person. 13. For the Appellant it was contended that the order was not without jurisdiction; that the learned Munsif had power to restore the suit and what was done was an irregularity of procedure which was cured by the consent, as it is submitted, which was given by the Plaintiff's pleader to the restoration of the suit. It is sufficient to say in this connection that the distinction drawn by the learned pleader for the Respondent is not material. The reason why an order made under sec. 108 has been held not to affect the merits is that the order does not determine the merits, but merely ensures a rehearing on the merits. It is sufficient to say in this connection that the distinction drawn by the learned pleader for the Respondent is not material. The reason why an order made under sec. 108 has been held not to affect the merits is that the order does not determine the merits, but merely ensures a rehearing on the merits. The effect of the order in this sense is the same whether it was passed with or without jurisdiction into which question it is unnecessary to enter. I hold, therefore, that the judgment of the learned District Judge on this point is erroneous. 15. The main question, however, and one which has been very fully argued before me is whether an appeal lies to this Court to contest that decision. 16. It is contended by the learned vakil for the Respondent that inasmuch as the effect of the judgment and decree of the lower Appellate Court was to dismiss the suit as against the Appellant, the latter cannot appeal against the decree which, it is submitted, is one in his favour. 17. The general question whether Defendants can appeal from a decree dismissing the suit as against them has been raised in several cases, though under different circumstances. 18. Chap. XLI of the Code treats of appeals from original decrees and Chap. XLII of appeals from appellate decrees. It is provided that an appeal shall lie from such decrees generally. It is not expressly said by whom an appeal may be preferred. As however has been pointed out by the Allahabad High Court, Jumna Singh v. Kamarun-nisea I. L. R. 3 All. 152 at pp. 156-157 (1880), it may reasonably be assumed that any party to the suit in which a decree is passed may, if he is dissatisfied with it, appeal from it. Sec. 597 refers to the judgment in appeal from original decrees and enacts that it may be for confirming, varying, or reversing the decree against which the appeal is made, and applies under sec. 587 to judgments in appeal from appellate decrees. Hence also it is inferrible that the parties who are allowed to appeal are those who may desire that a decree should be varied or reversed. 19. The question who may appela is determinable by the common sense consideration that there can be no appeal when there is nothing to appeal about. 587 to judgments in appeal from appellate decrees. Hence also it is inferrible that the parties who are allowed to appeal are those who may desire that a decree should be varied or reversed. 19. The question who may appela is determinable by the common sense consideration that there can be no appeal when there is nothing to appeal about. It is for this reason that, apart from cases of estoppel, only a party to the suit at the time the decree is made or his representatives or assigns when brought on the record, or an auction-purchaser in an appeal from an order passed in execution, may appeal as they alone can be affected by the decree or order. Again of such parties only those can appeal who are adversely affected by the decree. Usually, only the party against whom a decree is passed, i.e., the person ordinarily injuriously affected by the decree can appeal. For the same reason, the person against whom a suit has been dismissed cannot usually appeal against the decree as he is not ordinarily affected, otherwise than beneficially, by it. But in some cases a suit may be dismissed as against the Defendant and yet the latter may have a right of appeal. It is not because the suit is formally dismissed as against the Defendant that no appeal lies but because such dismissal is ordinarily not merely no grievance but an actual benefit to the Defendant. There is in such cases nothing to complain of. If there is, then notwithstanding that the suit is dismissed against him he may appeal. 20. So, an appeal has been held to lie by Defendants against whom specifically no decree was made but whose defence to the suit was necessarily disposed of by the decree. Jamna Das v. Udey Ram I. L. R. 21 All. 117(1898). and in Ram Gholam v. Sheo Tahal I. L. R. 1 All. 206 (1870) an appeal was held to lie on the ground that the Respondent's suit should have been dismissed absolutely and not in such a manner, by negativing the defence, that the Respondents were at liberty to come into Court again. In order to see what the decree really means, it has been held that the Court may look not only into the judgment but also into the pleadings. In order to see what the decree really means, it has been held that the Court may look not only into the judgment but also into the pleadings. If the decree, although apparently, and so far as it goes, is favourable to the Defendants but when read by the light of the record, is really unfavourable and may prove injurious to them, then the Defendants being aggrieved by it and having every interest to appeal, may appeal, Musst. Pan Kooer v. Bhugwant Kooer 6 N.W. P. 19, 28, 25 (1873), Lachman Singh v. Mohan I. L. R. 2 All. 497, 501, 504, 507, 508 (1879). The teat appears to be whether the Appellant-Defendant is aggrieved by the decree. If so, he may appeal notwithstanding that the suit has been dismissed as against him. 21. The decision in the case of Mahamade v. Nazirun I. L. R. 6 Cal. 19(1880), which has also been relied upon for the Appellant, though it is as has been pointed out, a decision upon sec. 28 of the Guardian and Wards Act (X of 1858) is an authority to the same effect, as those already cited, inasmuch as the section provides that all orders shall be open to appeal under the rules in force for appeals in miscellaneous cases (i.e., appeals from orders under sec. 588 of the present Code) and similar language is used in that section and in secs. 540 and 584. 22. Referring to the other decisions cited in argument, in the case of Pan Kooer v. Bhugwant Kooer 6 N.W. P. H. C. Rep. 19 (1873) it was held that as the Appellants had no ground to complain of and as the appeal was against a decree wholly in their own favour the legal meaning of which was that the Plaintiff's suit altogether failed, there was no appeal. 23. In the case of Jumna Singh v. Kama-run-nisea I. L. R. 3 All. 153 (1880). the Plaintiff's suit was dismissed. The Defendants-Appellants did not desire that the decree dismissing the suit should be varied or reversed. The appeal was by one Defendant against another. 24. In Seshayyar v. Pappuvaradyyangar I. L. R 6 Mad. 185 (1882), it was held that a party cannot appeal to protect a possession which he has disclaimed to hold, except on behalf of another party whom he was not authorised to represent and who had not appealed. The appeal was by one Defendant against another. 24. In Seshayyar v. Pappuvaradyyangar I. L. R 6 Mad. 185 (1882), it was held that a party cannot appeal to protect a possession which he has disclaimed to hold, except on behalf of another party whom he was not authorised to represent and who had not appealed. In that case also, the Appellant had no complaint. He was not interested either on his own or such other party's behalf. 25. If has, however, been argued that assuming the principles I have stated and which were contended for by the learned pleader for the Appellant, the latter is in fact not aggrieved by the decree : and, in support of this contention great stress has been laid on a precedent, Mussamut Oognee Chowdhrain v. Shaikh Keramutoollah 17 W. R. 219 (1872). This was a suit for rent in which it was held that the only real issue was whether one X was or was not liable for rent and in which Y the alleged purchaser of the tenure was held to have been wrongly made a party on the application of the tenant, and it was held that Y had no right of appeal against a decree given against X praying for a declaration of Y's liability for rent as purchaser from the tenant. This case has In some respects a resemblance to the present one. But the differences between the two are of a substantial character, and, even if it were more similar to the case now before me than it really is, I should not necessarily consider myself bound by It as, in my opinion, the question whether a party is aggrieved by a decree is a question of fact to be determined in each case according to its own peculiar circumstances. In the first place, in the case cited the Appellant had been not only added at the instance of the tenant, but it was no part of the Plaintiff's case that he had anything to do with the suit and no relief directly or indirectly was sought against, her. In the first place, in the case cited the Appellant had been not only added at the instance of the tenant, but it was no part of the Plaintiff's case that he had anything to do with the suit and no relief directly or indirectly was sought against, her. On the other hand in this case it was the Plaintiffs themselves who made the Appellant a party to the suit alleging that he was a mere benamidar for the other Defendants, and who thus attempted to obtain a decision in the suit which would impliedly at any rate negative his case that he was the real tenant. But further than this: there is in this case the order under sec. 108 which was obtained by the Appellant and which has been, though not appealable, wrongly set aside by the lower Court. The Appellant has thus been wrongly deprived of the benefit of that order which permitted him to have a rehearing of the suit; and, the proceedings under that order have been set aside,--proceedings which resulted in what was a substantially decree in the Appellant's favour. For, though he was ordered to pay the rent in arrears, such order was given on the basis of the truth of the title which he set up, namely, that he was a tenant of, and entitled as such, to the holding which has, upon the Munsif's judgment, been wrongly sold in execution of a decree for rent against persons who had no interest in it. He has been further deprived of the right to have the decision of the Munsif considered on the merits in the appeal which was preferred against the decree by the Plaintiffs. It appears to me, therefore, impossible to say that a party to a suit in which the lower Appellate Court has illegally set aside the decree of the first Court and the order allowing the rehearing which led up to such decree and which order was obtained without any objection and, as 1 am inclined to think, with the consent of the Respondents who now oppose the right of appeal, and in which suit the lower Appellate Court has refused to entertain the case on the merits, is not a person who is aggrieved by the decree and thus entitled to appeal. 26. 26. It has been urged that au appeal does not lie from a merely intermediate order but from the decree. That is so: but in the present case the appeal is from the decree which has, as I hold, illegally set aside such an intermediate order : and the District Judge has in consequence declined to entertain the suit on the merits. 27. Lastly, it should be observed that a decree has been passed against the Appellant for costs. Though an appeal might not lie against the decree for costs alone, yet in this case the question of costs is inseparable from the merits of the appeal, as the Appellant has been mulcted in costs for resisting the making of a decree which he had every right to resist as having been, as I find it to be, illegally made. I, therefore, hold that the Appellant has a right of appeal; and, I decree this appeal with costs. The judgment and decree of the learned District Judge are reversed and the case is remanded to him for a decision on the merits. The Appellant is entitled also to his costs in the lower Appellate Court. The other costs will abide the result.