Rajadhyaksha, J. - (1.)The facts giving rise to this appeal from order are these. The plaintiff is a nephew of defendant 1. The plaintiff's father died in about 1925, leaving behind him his widow, a minor son the present plaintiff and his brother defendant 1. In 1932 1933, the plaintiff's uncle defendant 1 took up a ferry contract, and as he did not pay the amount of the bid, the undivided property of the plaintiff and defendant 1 consisting of certain mulgeni rights in Survey No. 16 of Phattubele village was brought to sale and was eventually purchased by defendant 2 at an auction sale. In 1940, the plaintiff who was even then a minor brought a suit, No. 217 of 1940, through his guardian mother asking for a declaration that the auction sale held in 1936 in favour of defendant 2 was not binding upon the plaintiff's half share in the suit property and for an injunction restraining defendant 2 from taking the income of his share of the property. The suit was dismissed as the relief of possession which it was possible for him to claim had not been claimed. There was an appeal against that decision to the District Court, being Appeal No. 100 of 1942, and in that Court the plaintiff's mother withdrew the appeal with permission to bring a fresh suit. The order of the Appeal Court under Order 23, Rule 1 (2), was in the following terms:
[1] Appellant (plaintiff), should pay respondent (defendant 2) Rs. 15- 8-0 as costs of the appeal. [2] Plaintiff should also pay defendant 2 Rs. 68-3-0 being his (defendant 2's) costs of the lower Court. [3] Plaintiff should pay defendant 2 these costs before the institution of the next suit.

(2.)In 1944, the plaintiff who had by that time attained majority filed the suit, which gives rise to the present appeal and asked for the same declarations and injunctions as in the earlier suit. But before the suit was filed, the order regarding the payment of costs which had been made in the earlier suit was not complied with. After the institution of the suit, defendant 2 filed a written statement raising various contentious, one of which was that the plaintiff had no right to bring the present suit without paying the costs of the earlier suit, as Page 2 of 12 Ramkrishna Timmappa Shetti vs. Hanumant Patgavi (11.01.1949 - BOMHC) the payment of costs was made a condition precedent to the filing of a fresh suit.
(3.)The learned trial Judge framed a preliminary issue, viz., whether the suit was maintainable in view of this contention, and answered that issue in the negative. Accordingly, the suit was dismissed. The plaintiff thereupon again appealed to the District Court and while the appeal was pending, the learned pleaders appearing on both sides filed a joint purshis to the following effect:
"The appellant who was the plaintiff in the lower Court has now paid to the pleader for the other Bide Rs. 15-8-0 for his costs of the previous appeal (No. 100 of 1942) and Rs. 68-3-0 for costs of the previous suit (No. 217 of 1940) and has thus fulfilled the conditions laid down as precedent to his being entitled to file the suit. Hence the suit may now be taken as competent as from this date. The appeal may hence be allowed and the suit may be remanded to lower Court for trial on merits. Costs of this suit will be costs in the cause. The appellant may be ordered to pay the coats of the respondent in this Court of this appeal."
In accordance with the purshis filed by the pleaders on both sides, the learned District Judge made an order allowing the appeal and remanding the suit to the lower Court for trial. It is against this order that defendant 2 has now come in appeal.