( 1 ) ). This civil revision application has been filed by the appellants in the First Appeal against the order of the Taxing Officer refusing the refund of Court-fees under sec. 15 of the Bombay Court-fees Act 1959

( 2 ) THE plaintiff filed the suit for partition and accounts against his brother and mother. The learned trial Judge passed preliminary decree in the suit. Thereafter accounts- were taken and final decree was passed by the trial Court. It was challenged by the defendants in First Appeal No. 872 of 1977. By its final order this Court remanded the case to the learned trial Judge for deciding afresh on merits. The defendants-appellants- thereafter made an application under sec. 15 of the Bombay Court-fees Act 1959 for refund of Court-fees paid by them on the memorandum of appeal. The Taxing Officer dismissed the application. It is that order which is challenged under sec. 4 of the Bombay Court-fees Act 1959 in this civil revision application.

( 3 ) UNDER sec. 15 of the Bombay Court-fees Act 1959 refund of Court-fees paid on the memorandum of appeal can be ordered inter alia only if the plaint has been rejected by the lower Court on any of the grounds mentioned in the Code of Civil Procedure 1908 or if a suit is remanded in appeal on any of the grounds mentioned in Rule 23 of Order 41 in the First Schedule to the Code of Civil Procedure for a second decision by the lower Court. In the instant case the plaint was not rejected by the lower (Court on any of the grounds mentioned in the Civil Procedure Code. The first part of sec. 15 therefore is not attracted to the instant case.

( 4 ) MR. Shah has argued that the order of remand made by this Court should be deemed to have been made under Order 41 Rule 23. It is not in dispute before me that the suit was decided by the learned trial Judge on all issues and that his findings were set aside by this Court on all issues and the suit was remanded for a fresh decision on all issues. Order 41 Rule 23 specifies a suit which has been finally decided on a preliminary point and if the decree passed on such preliminary point is reversed in appeal. Since the present suit was not decided on a preliminary point but was decided on all issues the second alternative condition specified in Order 41 Rule 23 is notification. Ex face therefore Order 41 Rule 23 is not attracted to the instant case.

( 5 ) RULE 23a which has been inserted by Parliament in 1976 provides for remand in other cases. It provides as follows : 23 where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point. and the decree is reversed in appeal and a re-trial is considered necessary the Appellate Court shall have the same powers as it has under rule 23. MR. Shah has argued that since under Rule 23a the appellate Court has the same powers as it has under Rule 23 sec. 15 of the Bombay Court-fees Act 1959 which is linked with Rule 23 of Order 41 should be deemed to have been linked with Order 41 Rule 23a. Sec. 15 of the Bombay Court-fees Act 1959 specifies only Rule 23 of Order 41 and not Rule 23a of Order 41. Rule 23 and Rule 23a contemplate remands of suits or appeals to lower Courts on altogether different grounds. Rule 23 is attracted where the suit has been decided by the lower Court on a preliminary point without recording any finding on merits of the case. Rule 23a contemplates decision of a suit on all issues including the preliminary issue if there is any and further contemplates the remand of the suit after setting aside all those findings. These are two different kinds of remands. One is not interchangeable for the other. Therefore unless sec. 15 of the Bombay Court-fees Act 1959 is amended so as to embrace within its sweep Rule 23a of Order 41 by a fiction the benefit conferred by sec. 15 cannot be conferred in cases falling under Rule 23a of Order 41.

( 6 ) REFERENCE has been made to a few decisions in this behalf. In Sri Sushilamala Patt