Chaudhary Chandrika Prasad Singh and Others vs Mithu Rai and Others

Das, J.—These appeals are directed against the order of the learned Additional District Judge of Arrah, dated the 27th March 1926, by which, after framing certain issues, he remanded the case to the Court of first instance for decision of those issues.

A preliminary point is taken that no appeal lies. I agree that the appeals are incompetent and that they should be dismissed on that ground.

The question is whether the remand made by the learned Additional District Judge is under the provision of Order 41, Rule 23 of the code or not. It is conceded, that if the remand be under Rule 23, then the appeal lies to this Court. Rule 23 runs as follows:

Where the Court from whose decree an appeal is preferred his disposed of the suit upon a preliminary point, and the decree is reserved is appeal, the appellate Court may, if it thinks fit, by order remind the case, and may further direct what issues or issue shall be tried in the casa so remanded, and shall sand a copy of its judgment and order to the Court from whose decree the appeal is preferred with directions to readmit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.

The critical question then is whether the Court of first instance disposed of the suit upon a preliminary point and the decree of the Court of first instance was reversed in appeal. Now, in referring to the judgment of the first Court, I find that seven issues were drawn up by that Court and that every one of those seven issues was tried by the Court. The learned advocate for the appellant contends that in substance the Court of first instance decided the suit on the Issue 4 namely on the issue as to limitation, and left the merits of the case between the parties undetermined.

He argues on this footing because the learned Judge in the Court below held that there were certain matters which were left undetermined. But that is not the scope of Order 41, Rule 23. Order 41, Rule 23, operates only when one of the preliminary issues is tried by the Court of first instance and that Court disposes of the suit on that ground and says that it 13 not going to try the suit on any other issue. In this instance the Court of first instance decided all the issues; and, in my opinion, it cannot be urged that the remand by the lower appellate Court was under the provision of Order 41, Rule 23, of the Code. It was clearly a remand in the exercise of the inherent powers of the Court.

Then the nest question is whether an appeal lies from that order. It is conceded that the Civil P.C. has not given an express right of appeal from an order of remand in the exercise of the inherent powers of the Court, But it is contended that, although no appeal may lie from the order of remand looked upon as an order, still that order, should be looked upon as a decree, and in that view the appeal should be entertained. A decree is defined in the Civil P.C. a the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit, and may be either preliminary or final. Now, in this case the learned Judge in the Court below has not determined the rights of the parties either conclusively or otherwise, or at all. All that he has done is to hold that the rights of the parties cannot be decided until certain important matters are decided.

He has, therefore, left them very much at large. In my opinion, therefore, the order of the learned District Judge cannot be looked upon as a decree within the meaning of that term as used in Section 2, Civil P.C. I am aware that other Courts and other Judges have taken a different view; but I adhere to the opinion which I have frequently expressed in this Court.

I hold that these appeals are incompetent and I dismiss them with costs.

Adami, J.

I agree.