( 1 ) THIS second appeal is directed against the decree and judgment dated 30th March, 1998, of the 4th Extra Assistant Judge, Kheda at Nadiad, in Regular Civil appeal No. 86/92, arising out of the judgment and decree dated 30th November, 1989 passed by the Joint Judge (J. D.) Naidad, in Regular Civil Suit No. 491 of 1986. By his judgment and order dated 30th March, 1989 the first Appellate Court has set aside the judgment and decree passed by the Trial Court and remanded the matter to the Trial Court with direction to proceed with the suit by giving ample opportunity of hearing to the respondent herein. The respondent-defendant was further directed to file written statement on the first date of hearing of the suit which is fixed by the Trial Judge, and the suit was directed to be disposed of accordingly, within three months from the date of filing of the written statement.

( 2 ) LEARNED counsel for the respondent has raised preliminary objection that this second appeal under Sec. 100 CPC against the impugned judgment of the first Appellate court is not maintainable. Under the impugned judgment the first Appellate Court has remanded the matter to the Trial Court for deciding the suit afresh and this judgment and order in fact passed is in exercise of the powers conferred on the first Appellate Court under Order 43 Rule 1 of CPC and, instead of second appeal, from order should have been filed.

( 3 ) LEARNED counsel for the appellant-plaintiff does not dispute this legal position as contended by the learned counsel for the respondent-defendant. However, prayer has been made by the learned counsel for the appellant that this appeal may be treated as appeal from order and it may be decided accordingly. Learned counsel for the respondent- defendant does not dispute the postition that against the impugned judgment of the first appellate Court appeal from order does lie to this Court only. So it is the from and not the substance which is in fact insisted upon by the learned counsel for the respondent- defendant. Either it is appeal under Sec. 100 of CPC or Appeal from Order, limitation is same as well as in either case appeal does lie to this Court. Be that as it may. It is hereby ordered for convertion of the second appeal into Appeal from Order. Office is directed to make necessary correction in the cause title as well as the record of this Court.

( 4 ) LEARNED counsel for the appellant contended that the first Appellate Court has committed serious error and illegality in remanding the matter to the Trial Court for decision of the suit afresh. The respondent defendant was served with summons of the suit. In suit the advocate has appeared on behalf of the respondent defendant. Despite service of summons of the suit the respondent defendant has not chosen to file written statement. At a later point of time the advocate who was appearing for respondent- defendant in the Trial Court filed pursis for his withdrawal from the suit. On this pursis notice has been sent to the respondent defendant and despite service of notice at that stage also the respondent-defendant had not cared to put appearance in person or through another advocate. The learned Trial Court in the presence of these facts has not committed any error in passing the decree in the matter.

( 5 ) LEARNED counsel for the respondent urged that it is a clear case where fraud has been committed by the advocate. The respondent-defendant had not engaged advocate to appear in the civil suit on his behalf. Carrying this contention further counsel for the respondent-defendant contended that the advocate was not given vakalatnama nor was he given any instructions by the respondent-defendant to put appearance. However, learned counsel for the respondent-defendant does not dispute that summons of the suit has been served upon his client. Laastly, learned counsel for the respondent defendant contended that though from the proceedings of the civil suit it appears that th