The main legal point established is that a suit must be brought against the proper party and in accordance with the provisions of law, and amendments seeking to add a new party to the suit may be subject to limitations under the Indian Limitation Act.

JUDGMENT

Suhrawardy, J. - This Miscellaneous Appeal (No. 180 of 1924) and the S.A. No. 1016 of 1924 are directed against the same decision of the Court below. There is also an application u/s 115, C.P.C., filed by the appellant against the same order. The explanation is that in the present unsettled state of the law the appellant could not decide on the proper procedure.

2. The Miscellaneous Appeal was first heard and the learned Advocate for the respondent took a preliminary objection on the ground that no appeal lay. The facts of the case are that the plaintiff-respondent; brought a suit for recovery of the valve of certain goods which he had despatched, from one railway station to another on the Bengal Nagpur Railway but the goods were not delivered to the consignee. He accordingly raised the presents suit and in the plaint filed the name of the defendant was given as "Agent of the Bengal Nagpur Railway Saheb Bahadur." The defendant Mr. Young who was the Agent of the Bengal Nagpur Railway company at the time, appeared and one of the objections that he took was that the frame of the suit was bad. He also took other objections under Sections 75 and 77 of the Indian Railways Act on the grounds that the plaintiff had not declared the value of the goods as he was legally bound to do at the time of the consignment and the notice u/s 77 of the Indian Railways Act bad not bean properly served. The learned Munsif in the trial Court without going into the merits of the case held that the suit as framed was not maintainable. He also found against the plaintiff on the objections under Sections 75 and 77 of the Indian Railways Act. In this view ha dismissed the plaintiff's suit. There was an appeal by the plaintiff to the learned District Judge of Bankura who considered the first question only, namely, whether the frame of the suit was defective, and being of opinion that the intention of the plaintiff was to sue the Railway Company, he directed the plaint to be amended and the suit to proceed. The learned District Judge did not consider the decision of the trial Court under Sections 75 and 77 of the Indian Railways Act. In the view which the learned Judge took he set aside the decree of the trial Court and passed the following order: " The case will go back to the lower Court for amendment of the title of the defendant Company and for a fresh trial. The costs of the Court will abide the result of the suit. The Court-fee paid on the memorandum of appeal should be returned to the appellant." Against this judgment the appellant has preferred this appeal and S.A. No. 1016 of 1924. It is argued on behalf of the Respondent that this order not being an order under Order 41, Rule 23, is not appealable and therefore this appeal is incompetent. It is further argued that the decision of the first Court dismissing the plaintiff's suit was not a decision upon a preliminary point. It is apparent that that Court did not enter into the merits of the case but held that the plaintiff's suit could not proceed because of the defect in the description of the defendant; and it also found that the suit was barred under Sections 75 and 77 of the Indian Railways Act. The decision of that Court must be taken to be a decision on a preliminary point and the remand order of the lower appellate Court was one under Order 41, Rule 23, C.P.C. Moreover it has been held that though an order of remand passed by the Court of Appeal below may not be in strict accord with the provision of Order 41, Rule 23 read with Order 43, Rule 1 (u), if the order of the appellate Court purports to be an order under O.41, Rule 23, an appeal will lie from such an order. Strictly speaking, the order passed by the learned Judge is not in conformity with Order 41, Rule 23, but it is manifest from the form of his order that he purported to pass it under Order 41, E. 23. One of the orders that he passed is that the Court-fee paid on the memorandum of appeal should be returned to the appellant an