Maharaja Bahadur Sir Pradyat Kumara Tagore vs Babu Jyotish Chandra Das Gupta

Fazl Ali, J.—This appeal is directed against an order of the District Judge of Purnea reversing the order of the Munsif in a suit for rent and remanding the case to him for disposal according to law. The preliminary point which arises for decision in this case is whether this appeal is maintainable. On a reference to the order of the District Judge, it appears that the remand was ordered by him not under Order 41, Rule 23, Civil P.C., but in the exercise of the inherent jurisdiction of the Court to order a remand where it finds that the case has not been properly decided. A reference to Order 41, Rule 23 of the Code will show that a remand can be ordered under that rule in those cases only where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal. In the present case the Court from whose decree the appeal was preferred to the District Judge had not disposed of the suit upon any preliminary point. The learned Munsif had dealt with all the points which arose in the case and passed a decree after deciding those points. The lower appellate Court, however, was of opinion that those points had not been properly dealt with and accordingly remanded the case. The learned District Judge''s order did not fall under Order 41, Rule 23, Civil P.C., and, therefore, it is clearly not appealable under Order 43, Rule 1, Clause (u) of the Code.

Now, if the order passed by the learned District Judge is not an order under Order 41, Rule 23, then the question arises as to whether it is appealable at all. In Ram Chandra Rao v. Narayan Lal AIR 1920 Pat. 738 learned Single Judge of this Court had expressed the opinion that where the decree of a trial Court is reversed on appeal, and the appellate Court, in the exercise of its inherent power remands the case to the trial Court for a fresh decision, an appeal lies from the decree of the appellate Court reversing the decree of the trial Court. That view was in consonance with certain observations made in Ghuznavi v. Allahabad Bank Ltd. AIR 1917 Cal. 44 but a contrary view has been taken in a number of later decisions of this Court: Chaudhary Chandrika Prasad Singh and Others Vs. Mithu Rai and Others, , Permanand Kumar and Others Vs. Bhon Lohar and Others, and Jageshar Jha v. Mahtab Singh AIR 1926 Pat. 516 . If the matter was res integra, something could have been said in support of the view that this appeal may be regarded as an appeal from the decree; but the point was specifically raised in at least some of the cases to which I have referred and it was negatived. In Chaudhary Chandrika Prasad Singh and Others Vs. Mithu Rai and Others, , Das, J. dealt with the matter as follows:

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 CPC as the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the righs 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.

A similar view was taken by the learned Judges who decided the case in Permanand Kumar and Others Vs. Bhon Lohar and Others, . In this case Kulwant Sahay, J., who delivered the leading judgment of the Court, pointedly referred to the decision of Jwala Prasad J., in Ram Chandra Rao v. Narayan Lal AIR 1920 Pat. 738 and expressed his dissent from it. Thus, on the authorities of this Court, it is impossible to hold that an appeal lies from the order against which this appeal is directed. The learned advocate for the appellant referred us to Bibi Kulsoomunnissa Vs. Ram Prashad, and he contended that in any event the order under appeal may be taken to be an order passed under Order 41, Rule 23. In that case a Division Bench of the Allahabad High Court had expressed the view that when a Court makes an order of remand but without specifying under which provision of the Civil P.C., the order is passed, it may be assumed that the order is one under Order 41, Rule 23 of the Code. Now, with great respect to the learned Judges who decided that case, I think that such a view cannot be taken in the present case. As I have already pointed out, the Munsif did not dispose of the suit on a preliminary issue alone but had dealt with all the issues of the case. That being so, the District Judge could not deal with the matter under Order 41, Rule 23 of the Civil P.C. It is now well settled that even apart from the provisions of Order 41, Rule 23 an Appellate Court may remand a case in the exercise of its inherent jurisdiction where the case has not been properly disposed of by the Subordinate Court.

In Brij Mohan v. Deobhajan AIR 1920 Pat. 666 it was pointed out in the clearest possible language that the case contemplated by Order 41, Rule 23 is a case where the Court, from whose decree the appeal is preferred, has disposed of the suit upon a preliminary point and the decree is reversed on appeal, and not a case decided upon the whole evidence and upon all the issues which were raised. In that case it was also held that where in the latter case an Appellate Court concludes that the trial Court has wrongly decided the case and remands it for retrial, the order of remand is not appealable. In my opinion, the preliminary objection raised on behalf of the respondent must be upheld and this appeal must be dismissed with costs.

Harries C.J.

I agree. The state of the, authorities of this Court is such that this Bench is bound to hold that no appeal lies.