This appeal is directed against the judgment of the learned Assistant Judge. Panchmahals at Godhra setting aside the judgment and decree for eviction passed by the learned trial Judge and remanding the suit to him under Section 151. Civil Procedure Code, with a direction that he should raise issues and re-number them and send the same to the Mamlatdar for decision and in the meanwhile to stay the suit, under Section 85A of the Tenancy Act.

2. The facts giving rise to this appeal in a nut-shell are as under:-

3. The trustees of a religious public trust of Salam Jamadar's Mosque filed a suit against the present respondent Vaghri Sana Ratna to recover possession of the trust property which was in his possession as a tenant. The learned Civil Judge, Senior Division, Godhra passed a decree for eviction against the tenant. In an appeal preferred in the District Court, Panchmahals at Godhra, the learned Assistant Judge who heard the appeal was of the view that the question whether the present respondent was a tenant or not and whether the present appellants were entitled to possession of the suit land and mesne profits could only be decided by the Mamlatdar. In his view, provisions of section 88B would not be retrospective and would not apply to a tenant who was inducted on the land prior to 1956 when the Tenancy Act was amended. He, therefore, set aside the judgment and decree passed by the learned trial Judge and remanded the suit under Section 151, Civil Procedure Code with a direction to send the issues framed by him to the Mamlatdar for his finding and thereafter to decide the suit according to law. Against the said order of the learned Assistant Judge, the present appeal has been preferred to this court.

4. Mr. V.J. Desai, learned Advocate for the respondent at the outset raised a preliminary objection. He submitted that the appeal to this court could not lie. He stated that the learned Assistant Judge had remanded the suit in his inherent powers under Section 151, Civil Procedure Code. He had not remanded the suit under order 41, Rule 23, Civil Procedure Code. In fact, he urged that the Order 41, Rule 23 simpliciter could not apply to the facts of this case as the learned trial Judge had not disposed of the suit on the preliminary points. He therefore, urged that once the suit was remanded to the trial court under Section 151, Civil Procedure Code, the only remedy open to the aggrieved party was to come to this court by way of a revision application. In support of his say, Mr. Desai referred to the case of Mrigendra Kumar Majumdar v. Sidheshwar Shit, AIR 1966, Cal 310, wherein it was observed that-

"Where the order of remand by lower appellate court is plainly not one under Order 41 Rule 21, it is not appealable under Order 43 Rule 1(u).

It is difficult to hold that such a remand is appealable, particularly when the lower appellate court, in making this order, did not fully decide or conclusively determine anything on them merits of any of the disputes between the parties or any of their disputed rights but left the entire matter for decision to the trial court in the light of certain directions given in its judgment.

In making an order of remand to send the case back "to the trial Court for fresh or further consideration, the lower appellate court has always to set aside the decree of the trial Court. The mere fact, therefore, that the decree of the trial court has been set aside, would not make the lower appellate court's order of remand a decree and appealable as such. Indeed, otherwise every order of remand under Section 151 of the Code would become appealable."

With respect, I entirely agree. It cannot be said that the trial Court had disposed of the suit on a preliminary point. In fact, the trial Court had framed several issues and on the findings given on those issues on merits, the trial Court had passed a decree for eviction. The learned Assistant Judge, however, felt that the decree of the trial court was not pro