Judgment :- 1. The first of these cases is against the judgment of the court of the Subordinate Judge of Kottayam in a suit for recovery of possession on the strength of an oral lease or on title in the alternative. The trial court dismissed the suit; and the lower appellate court decreed the same. The defendant has filed the second appeal. The second case arises in execution of the decree of the appellate court in the same suit; and the prayer of the defendant-judgment-debtor for stay of execution has been repelled by both the lower courts. Consequently, the defendant has filed this second appeal as well. 2. The judgment of the learned Subordinate Judge, which is appealed against in S.A. No. 992 of 1962, is very unsatisfactory, especially in view of the fact that the Subordinate Judge has reversed the decision of the Munsiff. I have had both the judgments carefully read out to me; and I find that the Munsiff has considered every aspect of the case in a fairly reasonable manner, whereas, the judgment of the Subordinate Judge is only superficial. The questions involved in the case are whether the exchange of properties pleaded by the defendant is true, whether the oral lease set up by the plaintiff is established; and if neither of them is established, whether the plaintiff has established subsisting title. The first two are mainly questions of fact and the last one is a mixed question of fact and law. In view of the main questions being questions of fact, I do not think it is proper that I consider those questions in second appeal as a first appellate court on the evidence in the case. That means I have to set aside the reversing judgment of the Subordinate Judge and remand the appeal to the lower appellate court for fresh "disposal. I may also add that the observation of the Subordinate Judge that "on a reading of the lower court's judgment it can be seen that the court thought that it was necessary, somehow, to find that the theory of exchange pleaded by the defendant is true as it had already been found that the lease arrangement alleged in the plaint is not true." is not warranted. I do not find any, such attempt in the judgment of the Munsiff. 3. I do not find any, such attempt in the judgment of the Munsiff. 3. At this stage, the learned counsel of the appellant brings to my notice some other facts and requests me to reopen another question as well to be considered by the lower appellate court. The appeal before the lower appellate court was filed on 3rd February 1956 and the same was dismissed for non-payment of court fee on 6th March 1956. More than six months thereafter, two petitions were filed, one for restoring the appeal to file and the other for excusing the delay in filing the restoration petition. Notice was ordered on both the petitions; but the notices were returned with endorsements that the respondent (the appellant before me) refused to receive them. On third March 1959 the petitions were allowed and the appellant (the respondent before me) was directed to pay court fee by the 10th of the month. He applied for extension of time, which was also allowed; and ultimately, he paid court fee only on 23rd March 1959, i.e., more than three years after the dismissal of the appeal for non-payment of court fee. On 22nd July the appellant before me filed an application for reviewing the order of restoration alleging, inter alia, that he had no notice of the petitions. The review petition was however dismissed; and the appellant tried a civil revision petition before this Court, which was also dismissed in limine. The learned counsel of the appellant urges that this Court might now set aside the order restoring the appeal. 4. I do not think this contention can be accepted. Under S.105 of the Code of Civil Procedure, where a decree is appealed from, any error defect or irregularity in any order affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal. The order sought to be vacated in the present case is the order restoring the appeal to file; and it is not an order "affecting the decision of the case." There are several decisions on this question as to what is meant by the expression, "order affecting the decision of the case." Gulab Kunwar v. Thakur Das (ILR. 24 All.. 464) and Chintamony Dassi v. Raghoonath Sahu (ILR. 22 Cal. 981) are two of the old cases; and Midamati Venkata Narasimham v. Pogaku Nagojirao (AIR. 1946 Mad. 24 All.. 464) and Chintamony Dassi v. Raghoonath Sahu (ILR. 22 Cal. 981) are two of the old cases; and Midamati Venkata Narasimham v. Pogaku Nagojirao (AIR. 1946 Mad. 344), Radha Ballabh v. Jawahar Lal (AIR. 1956 All.. 216) & Maink Mandal v. Bharosi Singh (AIR. 1959 Pat. 225) are some of the recent pronouncements. It is clear that the order of restoration sought to be challenged in the present case is not one coming within S.105 of the Code of Civil Procedure; and therefore, this prayer cannot be allowed. 5. The second appeal is allowed, the decision of the lower appellate court is set aside and the appeal and the memorandum of objections are remanded to the lower appellate court for fresh disposal. The costs of the second appeal will be costs in the appeal. 6. The consequence of the allowing of the above second appeal is that S.A. No. 1149 of 1963 has also to be allowed, because there is no appellate decree in favour of the respondent to be executed. S.A. No. 1149 of 1963 is therefore allowed and the execution petition is dismissed, in the circumstances, without costs. 7. It is brought to my notice that a Receiver has been appointed, who has taken possession of the properties in execution of the decree of the lower appellate court. Now that that decree is set aside, the Receiver is directed to give back the properties to the appellant.