JUDGMENT : P.K. Subramonia Iyer, J. The sole question for determination in this appeal would sound strange and it is whether the decree in O.S. No. 41 of 1117 on the file of the court below which was reversed by the High Court in A.S. 741 of 1119 is nevertheless available for execution. The facts are these: The suit was brought by the karnavan of a Nair tarwad as the first and his senior anandiravan as the second plaintiff for declaration of their tarwad’s title to and recovery of possession by redemption of certain items of immovable property. The suit was resisted by defendants 1 and 4 who claimed the property as belonging to their tarwad (defendants 1 to 37) and not liable to be redeemed for the said and other reasons set out in their written statements. The first plaintiff died during the pendency of the suit and the second, the succeeding karnavan, continued it and obtained a decree in his favour, having meanwhile got the 38th defendant (the next senior anandiravan) impleaded as the legal representative of the deceased karnavan besides himself, a curious procedure whose only consequence is this unnecessary and vexatious proceeding in execution of a defunct decree as the sequel will show. The defeated contestants appealed to the High Court (A.S. No. 741 of 1119) impleading the surviving plaintiff the decree-holder, as the first and the 38th defendant as the second respondents unaware of the latter’s death. On discovery of that fact the appellants applied to the High Court stating that the suit was brought on behalf of the tarwad of the plaintiffs and that the first respondent is the legal representative of the deceased and can effectually represent the tarwad, there being no other person to be impleaded in the place of the second respondent and praying that it may be so recorded (C.M.P. No. 931 of 1120). The High Court passed and order ‘Recorded’ thereon accordingly. The appeal succeeded. The High Court set aside the decree appealed against and dismissed the suit with costs in both the courts. 2. The appellants applied to execute the decree for costs personally against the respondent. The High Court passed and order ‘Recorded’ thereon accordingly. The appeal succeeded. The High Court set aside the decree appealed against and dismissed the suit with costs in both the courts. 2. The appellants applied to execute the decree for costs personally against the respondent. His next senior anandiravan applied for execution of the decree of the District Court in favour of the tarwad on the basis that the appellate decree should be regarded as void as the tarwad was not the respondent, the only person impleaded having been the karnavan. Alleging default of the karnavan to execute the decree on behalf of the tarwad owing to his embarrassment as party to the appeal and as the person liable for costs, the junior anandiravan filed the application for execution showing the names of both the original plaintiffs, noting the first as dead, in the column allotted therefor, with his own name as petitioner who alone signed the petition. The second plaintiff has not signed it nor does it appear to have been meant for his signature. Having been shown as a plaintiff the karnavan was not arrayed as a defendant as he could not be, for the same person cannot both the plaintiff and defendant, even in different capacities. The 4th defendant contended that there was no decree for execution, the one sought to be executed having been reversed in appeal. The court below accepted the plea and dismissed the petition for execution. The appeal challenges that order. 3. The resolution of the question depends upon the correct construction of S. 31 of the Travancore Nair Act, II/1100 which enacts that: “No decree shall bind a tarwad unless it is obtained against the karnavan as such and the senior anandiravan of his thavazhi and of every thavazhi collateral to the same, if any.” Mr. N.K. Narayana Pillai, learned counsel for the appellant, contends that the section prescribes the mode in which a tarwad is to be impleaded as a party to a litigation. Whether as a plaintiff or as defendant, that in the present case the suit was by the tarwad represented in the manner prescribed by that section, the senior anandiravan having been a party plaintiff besides the karnavan and upon the death of the latter the then senior anandiravan having been brought on record though not as a plaintiff. Whether as a plaintiff or as defendant, that in the present case the suit was by the tarwad represented in the manner prescribed by that section, the senior anandiravan having been a party plaintiff besides the karnavan and upon the death of the latter the then senior anandiravan having been brought on record though not as a plaintiff. The decree of the District Court was passed in favour of the tarwad though given in the name of the surviving second plaintiff. That decree could be upset only in an appeal to which the tarwad was a party, i.e., the tarwad represented in the manner contemplated by the section, that is to say, with the karnavan and the senior anandiravan as its representatives. There was only the karnavan impleaded as the respondent who was incompetent when there is a senior anandiravan in existence, to represent the tarwad according to that section. Another point urged by him is that even if the karnavan could alone represent the tarwad he was not described as such which was essential to invoke his representative capacity in the absence of which the tarwad cannot be bound. The result, according to him, is that the decree passed by the High Court in appeal is void and if that is so, that of the District Court was in tact available to be executed. The third point urged by him was that when a karnavan who has obtained a decree neglects to take steps for execution it is competent for an anandiravan to start execution and recover the fruits of the decree for the tarwad. 4. Mr. Varadaraja Iyengar, learned counsel for the respondent, did not controvert the last point and rightly so. The karnavan is the person competent and bound to take action for execution of a decree on behalf of the tarwad as in other matters. The oft-quoted words of Justice Holloway, “A Malabar family speaks through its head, the karnavan, and in courts of justice except in antagonism to that head, can speak in no other way.” contain the ordinary rule. Exceptions thereto have been recognised in the interests of the tarwad by giving effect to the right of a junior member to conserve tarwad property. Exceptions thereto have been recognised in the interests of the tarwad by giving effect to the right of a junior member to conserve tarwad property. When the karnavan who should take action neglects to do so or has rendered himself incapable of acting, or even if he has subjected himself to any embarrassment in that regard, then an anandiravan can intervene to protect the tarwad’s rights. (37 Cochin 266) 1944 T.L.R. 847; (1951) D.L.R.T.C. 218; (1 T.L.J. 78). 5. Marumakkathayam is customary law. The first legislative interference with it was by Travancore Act I/1088 which does not purport to be a complete Code as it was meant only to define and amend the law of marriage, succession and family management. The last and 26th section of the Act saved the operation of the rest of the law by enacting in its second clause that: “Nothing in this section shall 1. x x x x x x x x x 2. affect the existing rules of marumakkathayam law, custom or usage except to the extent hereinbefore provided for” and the provision relevant to the context is the 25th section which enacted that: “No decree shall bind a tarwad unless it be obtained in a suit against the karnavan as such and the senior anandiravan of his thavazhi and of every thavazhi collateral to the same if any.” The Cochin Legislature followed, and brought on the Statute Book the Cochin Nayar Act, XXII/1095, enacting the 53rd section in terms of the 26th section of the Travancore Act but slightly departing from the terms of the 25th section of that Act in S. 32 which reads:- “No decree shall bind a tarwad unless it be obtained in a suit against the karnavan as such and all the members of the tarwad”. In Travancore the law was re-enacted by Act II/1100 and in Cochin by Act, XXIV/1113. The applicability of the pre-existing Marumakkathayam law was saved as before by Ss. 44(a) and 74(b) of the respective new Acts in the same terms as in the repealed ones. S. 31 of the Travancore Act has been read. The corresponding section in the amended Cochin Act is 56 which provides that: “No decree shall bind a tarwad unless it be obtained against all the members thereof. 44(a) and 74(b) of the respective new Acts in the same terms as in the repealed ones. S. 31 of the Travancore Act has been read. The corresponding section in the amended Cochin Act is 56 which provides that: “No decree shall bind a tarwad unless it be obtained against all the members thereof. But the mere omission to implead any member other than the karnavan shall not be taken to invalidate it if the decree-holder proves that such omission was not due to his negligence and the tarwad was liable for the claim upon which it is based.” In the Cochin Namboodiri Act, XVII of 1114, S. 12 is in the same words. The Cochin Marumakkathayam Act XXIII of 1113 which applies to Marumakkathayees who are not Nairs provided for this matter in S. 36 thus: “In a suit against the tarwad, all the major members thereof should be made parties. But the omission to implead any member other than the karnavan as such shall not by itself invalidate a decree obtained against the tarwad if it is otherwise shown to be one properly binding on it.” 6. With this background, we may come to the remaining two points urged by Mr. Narayana Pillai whereof it is convenient to consider first the second point; whether the omission of the words ‘as such’ in describing the respondent would preclude the appellate decree binding the tarwad if otherwise the tarwad would be bound thereby; what is the meaning and purpose of that expression used in S. 31 of the Act? It is contended that these words are meant to invoke the representative capacity of the karnavan under the law that existed before legislative intervention the tarwad could be sued by impleading the karnavan alone. Indeed it has been said that the karnavan is the tarwad. Under that law authorities are umpteen to the effect that it is not necessary to describe the karnavan as such. It is enough that the person was in fact the karnavan and the action was to enforce a claim against the tarwad. Whether the statute made any difference in this regard or did it merely declare what was required before, by the expression ‘as such’ in relation to the karnavan is the next question. It is enough that the person was in fact the karnavan and the action was to enforce a claim against the tarwad. Whether the statute made any difference in this regard or did it merely declare what was required before, by the expression ‘as such’ in relation to the karnavan is the next question. It was not nor can it be contended that the expression used in the sister Acts of the two States have a different context or connotation. S. 32 of the first Cochin Act requires that every member of the tarwad should be eo nomini on record as defendant in a suit against the tarwad leaving none to be represented. Nevertheless, that section contained the words “as such” qualifying the karnavan. Obviously, these words could not have been intended to invoke the representative capacity of the karnavan because there is no scope for the exercise of that capacity. Those words could therefore only mean that the claim must be concerning the tarwad wherein with reference to the other members one is the karnavan. Both the High Courts of Cochin and Travancore have thus interpreted these words. Narayana Ayyar v. Parukuttan Nambiyar 22 Cochin Law Reports 363 and 20 T.L.T. 558 are instances. In 22 Cochin 363 at page 365 Vaidyanatha Aiyar, C.J. expressed himself as follows:- “In insisting upon the karnavan of the tarwad being impleaded as such when all the members of the tarwad are defendants the legislature only meant to lay down that there should be something to show that the suit was against the tarwad. If, therefore, the suit is against the tarwad and all the members of the tarwad are impleaded as representing the tarwad there can be no purpose in describing the person occupying the position of karnavan as such.” The legislature accepted this interpretation as is evident from S. 56 of the amended Cochin Nair Act of 1113 which does not contain the words ‘as such’. It is not necessary to multiply authorities as, in our judgment, there is no ground to support the opposite view. Reference may however be made to three recent cases one from each of the three High Courts of Travancore, Cochin and Madras where alone this question would arise. 1944 T.L.R. 847 (F.B.) Chacko v. Bhaskaran 38 Cochin 379 (F.B.). It is not necessary to multiply authorities as, in our judgment, there is no ground to support the opposite view. Reference may however be made to three recent cases one from each of the three High Courts of Travancore, Cochin and Madras where alone this question would arise. 1944 T.L.R. 847 (F.B.) Chacko v. Bhaskaran 38 Cochin 379 (F.B.). Ikkanda Warrier v. Parameswaran Elayath, A.I.R. 1937 Madras 438, Pappi Amma v. Rama Iyer in the last of which Varadachariar, J. said: “In determining whether a decree was obtained against a karnavan as representative of the tarwad, Courts have attached more importance to the nature of the debt and the substance of the claim and have not insisted upon any particular form of words in the frame of the suit. ”(P. 440) There is no section corresponding to S. 31 of the Travancore Nair Act of 1100 either in the Madras Nambudiri Act XXI or the Madras Marumakkathayam Act, XXII, both of the year 1933. 7. The same rule will apply to Malayala Brahmana and Ezhuva families who follow the customary Malabar Law in this and certain other respects. S. 27 of the Ezhuva Act, III of 1100 is word for word the same as S. 31 of the Travancore Nair Act II of 1100. S. 12 of the Malayala Brahmana Act, III of 1106 is similarly worded. The words ‘as such’ in the two enactments have the same object and import as in the enactments above dealt with. In 1953 K.L.T. 459 the question as regards the necessity to describe the karnavan as such in a Travancore Nambudiri family before the said Statute was enacted arose and it was held that such description was unnecessary following the view that prevailed under the customary Malabar Law. The interpretation of the expression ‘as such’ in that section of the Statute did not arise and was left open. In a suit against a Nambudiri family to which Act III of 1106 applied but against which a decree had been passed in O.S. 265 of 1103, i.e., before the enactment of Act III of 1106 with the karnavan, the next senior anandiravan and another member as defendants 1, 2 and 3 of whom the first defendant having died during the pendency of the suit, it was continued with the second defendant as succeeding karnavan but without expressly describing him as such. It was held by a Division Bench of this court in an appeal arising out of a subsequent suit of the year 1118 filed by certain junior members who were not impleaded in the prior proceedings that the non-description of the succeeding karnavan as such was fatal to the decree in so far as the ill om was concerned and that part of it was vacated. This case is reported in 1951 K.L.T. 144 (1951) D.L.R. T-C. 74. The decision is wrong and is overruled. 8. In the present case neither the first plaintiff nor the second was described as karnavan in the cause title to the plaint, though in the body it was stated that the first plaintiff was the karnavan of the tarwad. After his death, the surviving plaintiff who was the next karnavan was not given a similar appellation, that is to say, the decree was given in his name on behalf of the tarwad whose karnavan he was in truth though he was not described as such. He was impleaded as the first respondent in the appeal in the same manner in which he was on record as plaintiff in the original suit. Except on the basis that the provision for the description of the karnavan ‘as such’ in S. 31 of the Act applies when decrees are passed against the tarwad, whether in actions by or against it, the contention cannot be urged here. 9. This leads to the first of the points contended for by learned counsel, for the appellants. S. 25 of the Nair Act, 1/1088, leaves no room for doubt as it clearly says that the suit, the binding character of the decree wherein is dealt with by S. 25 should be one against the tarwad. Even so, in the case of S. 32 of the Cochin Nair Act of 1095 which is similar. The words ‘in the suit’ are omitted from the corresponding Ss. 31 and 56 of the amending Acts of the two States. The words were first deleted in S. 31 of the Travancore Act. The omission was made on the motion of the Additional Head Sirkar Vakil who apparently piloted the bill and who said : “It may not always be a decree in a suit. An order passed in execution proceedings may be a decree and similarly orders passed under various circumstances may be decrees. The omission was made on the motion of the Additional Head Sirkar Vakil who apparently piloted the bill and who said : “It may not always be a decree in a suit. An order passed in execution proceedings may be a decree and similarly orders passed under various circumstances may be decrees. Hence the words ‘in a suit’ have to be omitted”. (See Travancore Acts and Proclamations Vol. V, page 660, Foot note to S. 31). In the presence of the words ‘in the suit’ the section could apply only to proceedings against the tarwad. It may have been apprehended that such proceedings may have to be limited to suits though proceedings in execution are, as expressly provided by the Code of Civil Procedure, proceedings in suits and the deletion for enabling its application to such proceedings as well may have been made ex abundanati cautela. There can be no doubt that on account of the deletion of the words the legislature did not intend to include within the ambit of the section proceedings by or on behalf of the tarwad, for, it that had been the intention nothing would have been easier to use the said well known expression. In our view, the language of the section does not admit of a construction so as to extend its operation to proceedings started on behalf of the tarwad. Where a suit was filed on behalf of a tarwad by its karnavan which was dismissed with costs and an execution of the decree for costs followed, it was contended that the tarwad not having been represented in the action in the manner prescribed by S. 32, i.e., by impleading all the members, the decree for costs would not bind the tarwad, the Chief Court of Cochin in 17 Cochin 174 following an earlier decision at page 164 of the same Volume held:- “That (S. 32 of the Cochin Nair Act of 1095) prohibits the passing of a decree binding on the tarwad without impleading all the members thereof only in suits brought against the tarwad and not in suits brought by or on behalf of it”. In our judgment, this is the only possible view and its correctness can be demonstrated by an attempt to apply S. 56 of the amended Cochin Nair Act, 1113 to a plaintiff tarwad according to its terms. In our judgment, this is the only possible view and its correctness can be demonstrated by an attempt to apply S. 56 of the amended Cochin Nair Act, 1113 to a plaintiff tarwad according to its terms. The section requires that the tarwad shall be represented by all the members thereof in order that the decree may bind it but adds the saving clause to the effect that the mere omission to implead any member other than the karnavan shall not be taken to invalidate it if the decree-holder proves that such omission was not due to his negligence and the tarwad is liable for the claim upon which it is based. The last portion of the clause unmistakably shows that the action, the decree wherein is contemplated, was to enforce a liability of the tarwad and not a right of the tarwad. The words used are that the tarwad would be liable for the claim and not that the tarwad would be entitled to the claim. The saving clause contemplates the contingency of the decree-holder proving that his omission to implead any member or members of the tarwad other than the karnavan was not due to his negligence. Is it conceivable that the tarwad would omit any member thereof as a party plaintiff and if it is, can the omission be due to any other cause than negligence? Surely not. In the case of a stranger filing a suit against the tarwad he may not know who all are the members thereof and any omission to implead one or more on account of the difficulty of getting information about the existence and whereabouts of members, especially in this age when the members may even ordinarily be anywhere in the world unlike the olden times when their movements were restricted, should not be fatal. The effect of time and space having been minimised if not effaced by up-to-date facilities for quick transport, in the absence of a provision like the one contained in the saving clause claimants against the tarwad may well-nigh find it impossible to enforce their rights against it, and hence the saving clause for their benefit which cannot apply when the tarwad itself figures as plaintiff. 10. As regards the consequence of non-compliance with the requirements of the section regarding impleading of a tarwad as a party there is no doubt. 10. As regards the consequence of non-compliance with the requirements of the section regarding impleading of a tarwad as a party there is no doubt. If the provisions of the section are not complied with the tarwad is not there as a party and without tarwad as a party no decree can be passed against it. A Full Bench of this Court held so recently in Kamalkshi Amma v. Gangadharan Pillai (I.L.R. 1953 T.C. 868). 11. In the present case the facts proved do not show that the two plaintiffs would have satisfied the requirements of S. 31 of the Travancore Nair Act, 2 of 1100. There is no evidence that there was only the thavazhi of the karnavan in the tarwad. If there were collateral thavazhies the senior anandiravans of those thavazhies were also necessary for representing the tarwad according to that section. In the absence of evidence of the non-existence of collateral thavazhies it is not possible to say that the plaint as originally laid brought the tarwad on record as plaintiff. That after the first plaintiff’s death there was non-compliance with the section is clear because the next anandiravan was brought in only as a defendant, the 38th. An additional plaintiff could be brought on record with the consent of the existing plaintiff. But the anandiravan was not brought in as such. It was on the surviving plaintiff’s application that he was brought in. The application is not before us. It might be that the succeeding karnavan, that is the surviving plaintiff, was not agreeable to bring the anandiravan was not willing to figure as a co-plaintiff and no one can be made a plaintiff - without his consent. But whatever the reason be, the fact is that there was not the concurrence of the karnavan and anandiravan in the matter of the latter being arrayed as a co-plaintiff. It is true that the law permits some among a group of persons who ought to but cannot for some reason be co-plaintiffs to institute suits impleading the others as defendants. The case of co-trustees is an instance. One of them may bring the suit on behalf of the trust impleading the co-trustees as defendants if their joinder as plaintiffs is either impossible or impracticable. The case of co-trustees is an instance. One of them may bring the suit on behalf of the trust impleading the co-trustees as defendants if their joinder as plaintiffs is either impossible or impracticable. The decree in such a case should be asked for and given in the names of all the co-trustees, however they may have been arrayed because the trust is to be represented by all of them. In the present case there does not appear to have been any prayer for granting relief in the names of surviving plaintiff and of the 38th defendant. Had there been a prayer it must have been disallowed because the decree granted was only in the name of the surviving second plaintiff. In no view of the matter can it, therefore, be said that the decree in O.S. 41/1117 was obtained by the tarwad, with the representatives mentioned in S. 31. It was only obtained by the karnavan of the tarwad on its behalf and the same karnavan-decree-holder represented it as respondent in the appeal. 12. Under the customary Malabar Law whose operation was saved by the Nair Act which made no express provision as to the person by whom relief on behalf of the tarwad as plaintiff should be sought, the karnavan was entitled to sue as its representative. The management of the tarwad and possession of the tarwad properties is with the karnavan. He can collect outstandings and give discharges all by himself. In fact he could alone act in all matters on behalf of the tarwad except perhaps in the case of outright assignments of immovable properties of the tarwad. The Nair Act recognises the karnavan’s power of management. It places certain restrictions upon his acts for safeguarding the interests of the tarwad. In transactions regarding immovable property by way of out-right alienation and by way of mortgage or lease thereof for specified long periods the consent in certain prescribed manner of the adult members was provided for. No concurrence in that act was enjoined. Starting proceedings in courts for enforcing claims of the tarwad is a part of the management and no restraint has been placed upon the karnavan in the matter of initiating actions. No concurrence in that act was enjoined. Starting proceedings in courts for enforcing claims of the tarwad is a part of the management and no restraint has been placed upon the karnavan in the matter of initiating actions. This consideration corroborates the conclusion reached as regards the scope of the operation of S. 31 of the Act, viz., that it is confined to the case where the tarwad is arrayed as a defendant or as party proceeded against. 13. In default of the karnavan to take action the Malabar Law conceded to an anandiravan a right to conserve tarwad property by starting action himself alleging the karnavan’s default. Even then, relief can and should be granted in the name of the karnavan except in a case where he does not claim it himself but assumes an attitude of obstruction challenging the anandiravan’s right of suit though it is one for the tarwad’s benefit (See Sundara Iyer’s Malabar Law Page 83. See also (1951) D.L.R. T-C. 218, 1944 T.L.R. 847 F.B. In a case where the karnavan with or without the conjunction of other members alienates tarwad property or does an act which is considered detrimental to the interests of the tarwad, to the member or members who are not parties to the act and those who though apparently parties being minors or otherwise disqualified are only represented by guardians in which case they may be regarded as being really no parties, the law concedes a right of action. If the action succeeds the tarwad gets the benefit. That is to say, the decree would enure to the benefit of the tarwad though the junior member at whose instance and cost the relief was obtained would be entitled to recoup himself the expenditure properly incurred by him to secure it. In all these cases the plaintiff who starts the action is dominus litis and can control the action and represent the cause agitated throughout the list which depends and continues in all its stages in the court of first instance, in the court of appeal, if there is one, and in the second appellate court, should resort be made to the High Court. The decree obtained in the action is the final or the effective decree (See the Full Bench decision of this Court in 1954 K.L.T. 179, Lekshmi v. Sivapillai. The decree obtained in the action is the final or the effective decree (See the Full Bench decision of this Court in 1954 K.L.T. 179, Lekshmi v. Sivapillai. The earlier decree or decrees of the court or courts below would merely be stages in the process towards that final decree and when that last stage is reached the earlier ones would merely be of historical importance. To regard the decree of a lower court in favour of the karnavan or other member on behalf of the tarwad otherwise than as a stage in the whole litigation and as creating a right in favour of the tarwad immediately, where of it can be deprived only in an appeal to which it is made a respondent in the manner provided by S. 31 would be fraught with very serious consequences which could not have been contemplated by the legislature. Law gives the defeated defendant a right of appeal. It is a vested right of which he cannot be deprived except by express words of a statute. The time for appeal is short and is meant merely to enable its preparation and presentation. If the appellant has to ascertain the existence and whereabouts of the other persons to be impleaded it may not be possible to do so within the time and if one member is omitted, the tarwad will not be there, and if he is afterwards brought in it might be too late. It would thus be indirectly depriving the defendant of his right of appeal for no fault of his, and bestowing an unjustifiable advantage on the party that for the moment succeeds. If S. 31 applies to appeals, it would apply to an application to set aside a decree ex parte under O. IX, R. 13 Cl. (1) and the tarwad would have to be impleaded in the manner prescribed by that section, i.e., other members of the tarwad would have to be brought in afresh and notices given to them. That is to say notices will have to be issued to persons not on record though the second clause of the rule provides for notice only on the opposite party. That is to say notices will have to be issued to persons not on record though the second clause of the rule provides for notice only on the opposite party. In the words of Macpherson and Hill, JJ: “We are of opinion that the persons on whose behalf the suits were instituted, but who did not themselves join as plaintiffs in the suit were not parties to the suit in the sense that they had any voice or control in the conduct of it,” (1 C.W.N. 65 at 66-7). 14. It would be inconvenient even for the tarwad if the junction of all members or any member other than the karnavan is required for enforcing its claims i.e. if any others than the karnavan should figure as plaintiffs. If they are plaintiffs the decree must be in their names and execution must be taken out by all and one dissentient may obstruct even if he may not prevent proceedings. This will be a feature common to the Cochin and Travancore Acts. There is yet another difficulty in applying the section to the Travancore Act because according to it all members of the tarwad need not be parties. If the persons mentioned in S. 31 are plaintiffs and a decree is given in their favour, that would be a discrimination in their favour as against the other members of the tarwad whose rights are equal. In either case it would be an encroachment upon the right of management of the karnavan for which there is no warrant. The competency of the plaintiff to represent his cause continues and should continue in all the various stages of the litigation. The second plaintiff who obtained the decree in O.S. 41 was, therefore, competent to represent the tarwad as the sole respondent in the appeal against it (A.S. 741) and the appellate decree being the final decree in the case that of the trial court which was set aside should be regarded as not having come into existence, because when the appellate court dismissed the suit, it said that the court below should have dismissed it and that it was wrong in not having done so. 15. The order passed by the court below is therefore right and the appeal directed against it should be dismissed with costs. Dismissed.