Nand Lal Das vs Manrup Mahton and Another

Agarwala, J.—The plaintiff-respondent sued to set aside a money-decree which had been obtained against him by the defendant. The trial Court dismissed the suit and the plaintiff appealed. The appellate Court has remanded the case to the first Court. Against the order of remand the defendant has preferred the present second appeal. The learned advocate for the respondent takes a preliminary objection that the order of remand in this case is not appealable, his contention being that the order was passed neither under Rule 23 nor Rule 25, Order 41, Civil P. C, but under the inherent powers of the Court.

The learned advocate for the appellant does not contend that the order was made under Rule 25, but he does contend that it was made under Rule 23, Order 41, and is therefore appealable. The question for determination is. whether the first Court disposed of the suit on a preliminary point. If it was so disposed of, then the appellate Court had power, if it disagreed with the decision on the preliminary point, to remand the case to the first Court under Rule 23. The meaning of the words ''preliminary point" in Rule 23 has been considered by a Full Bench of the Madras High Court in Malayath Veetil Raman and Others Vs. C. Krishnan Nambudripad (dead) and Krishnan Nambudripad, legal representative of the deceased, . The Full Bench held that a preliminary point within the meaning of this rule "is any point the decision of which avoids the necessity for the full hearing of the suit."

The question therefore is whether in the present case the trial Court disposed of the case on a point which avoided the necessity for the full hearing of the suit. In the trial Court nine issues were framed: the principal issue was issue 7 which was whether the summons in the original money suit was suppressed through the fraud of the defendant, and whether, in consequence, the decree was liable to be set aside. The Court decided all the issues, and issue 7 in very great detail. I am not therefore prepared to hold that the trial Court disposed of the suit on a preliminary point.

The learned advocate for the appellant referred to a number of cases of which it is necessary to cite only two: first, Basumati Debi v. Taribasini Dasi AIR 1920 Cal 569, in which it was held that where an order of remand is in form and substance an order under Rule 23, Order 41, an appeal lies, That decision is not of any assistance in the present case where the order under appeal is not, in form or substance, an order under Rule 23.

The second case to which it is necessary to refer is the decision in Bibi Kulsoomunnissa Vs. Ram Prashad, in which it was held that where an order of remand is not expressly made u/s 151 it may be assumed to have been made under Rule 23, Order 41, Civil P.C. Now, in the present case, as I have already said, it is impossible to hold that the suit was disposed of on a preliminary point, which is the essential necessity for the application of Rule 23, and therefore it is not a case in which it can be assumed that the order was under Rule 23, for I am not prepared to assume that the Court exercised a jurisdiction not vested in it.

It was also contended by the learned advocate that in this case an appellate decree has actually been drawn up and therefore he is entitled to appeal from that decree. But in my view a non-appealable order does not become an appealable decree because the order is drawn up in the form of a decree. In the case of Permanand Kumar v. Bhom Lohar AIR 1926 Pat 157 it was held by this Court that

where an order of remand merely sets aside the decree of the trial Court and does not itself decide any of the points raised for determination and does not determine the rights of the parties with regard to any of the matters in controversy in the suit, it can not amount to a ''decree'' and must be treated as a non-appealable order.

That is precisely the position in the present case. The appellate Court has expressly avoided the expression of any opinion on any question at issue, in order not to prejudice the rehearing for which the case was remanded. The result is that the preliminary objection is upheld and the appeal is dismissed. The respondents are entitled to their costs.