An order for remand passed by an appellate court under Section 151 of the Code of Civil Procedure is not appealable.

( 1 ) THIS revisional application is by the defendants Nos. 1 to 7 of the original suit against the decision of a Subordinate Judge, Midnapur in a first appeal remanding the case back to the trial Court of the Munsif for the rehearing of the suit.

( 2 ) THE opposite party-plaintiff Kartick Hait brought the original suit against several defendants for declaration of his title to some of the properties mentioned in the plaint and for partition of the suit properties, separate possession, mesne profits and permanent injunction. Of the defendants only the petitioners before this Court filed written statements and contested the suit challenging the allegations of the plaintiff. The trial Court on consideration of the evidence disbelieved the evidence adduced on the side of the plaintiff and rejected the story that the plaintiff had any title to the disputed lands as alleged and held the contesting defendants' case as acceptable. The learned Munsif dismissed the suit. In the appeal taken by the plaintiff, the learned Subordinate Judge found insufficient evidence on the question of a previous partition set up by the defendants for any decision although he did not consider all facts and circumstances. According to him, there was no decision on issue No. 6 and the trial Court came to a decision on the question of title and possession without any issue in that respect. The learned Subordinate Judge passed order for remand for the learned Munsif to rehear the suit giving an opportunity to the parties to adduce further evidence. Against this order for remand, the present application under Section 115 of the Code of Civil Procedure has been filed.

( 3 ) I have heard Mr. Kundu, the learned Advocate for the petitioner and Mr. Panda for the plaintiff-opposite party.

( 4 ) MR. Panda on behalf of the opposite party has raised a preliminary objection that the present revisional application is not maintainable and that an appeal ought to have been filed against the decree passed by the appellate Court below.

( 5 ) THERE is the provision for remand of a case by the appellate Court in Order 41, Rule 23 of the Code of Civil Procedure. When a suit is disposed of on a preliminary point and the decree is reversed in appeal the appellate Court may by order remand the case to the lower Court for determination of the suit as indicated in that Rule 23. Against that order of remand an appeal lies according to Rule 1 (u) of Order 43 of the Code. In this connection Mr. Panda has argued that in the present case the First Appellate Court drew up a formal decree and the same was signed. According to him a second appeal ought to have been filed in this Court. I cannot accept this contention. First of all, the order of remand passed by the appellate Court below was not under Rule 23 of the C. P. Code. The trial Court decided the suit not on any preliminary point but on all issues framed considering the questions of law as raised before him and the evidence on record. Therefore, when the appellate Court sent back the case on remand for fresh decision on questions of law and fact, it cannot be an order of remand under Order 41, Rule 23.

( 6 ) NEXT, Rule 23 provides for an order of remand and not for any decree. "decree" has been defined in Section 2 (2) of the Code of Civil Procedure- A decree is the formal expression of the conclusive determination of the rights of the litigants. In the appeal below there was no determination of the rights of the parties but the matter was simply sent down on remand for decision of the suit on merit. There was no occasion for the appeal Court below for drawing up of any decree. There was simply an order for remand that was passed. When the decree was formally drawn up, though not necessary, it was of no effect. Therefore, there can be no question of filing any second appeal. The decision of a Division Bench of the Patna High Court in Chandrika Prosad Singh v. Mithu Rai reported in 103 Ind Cas 722 (723) = (