The judgment emphasizes the finality of a remand order if not appealed against and the limitations of the court's inherent jurisdiction under S.151, CPC.

1. Defendants 1 to 3, 5 to 11, 47 to 49 and 51 in O. S.688 of 1965 in the Court of the Munsiff of Payyoli are the appellants. The suit was for partition and separate possession of plaintiffs' 7/52 shares in plaint A and B schedule properties.

2. The questions formulated by this Court at the time of admission are: (1) Are the rights of the plaintiffs-respondents barred by adverse possession and limitation. (2) Is the principle laid down in (1977) 2 S.C.C. 155 (AIR. 1977 SC. 1011), Para 15 applicable to the facts of the case.

3. If the answer to question No. 2 is in the affirmative, then only the first question need be considered.

4. Facts relevant for considering the second question are given hereunder: The trial court by the judgment dated 28-11-1969 dismissed the suit." The plaintiffs thereupon filed an appeal, A. S.33 of 1970 in the Court of the Subordinate Judge of Badagara and in the said appeal the points formulated for determination were:

1. Do the properties belong to the tavazhi of plaintiffs, defendants 1 to 11 and 13 to 46?

2. Are plaintiffs and defendants 31 to 33 the descendants of Kunhikkayya Umma and are they entitled to shares in the properties?

3. What are the correct shares?

4. Is the suit barred by adverse possession and limitation?

5. On point No.1 the finding is that the A schedule property does not belong to the tavazhi of plaintiffs, defendants 1 to 11 and 13 to 46. On point No. 2 the appellate court has found that the 7th plaintiff and defendants 45 and 46 are not entitled to any share in the properties. Regarding point No. 3 the finding is this:

"Since I propose to remand the suit to the lower court, the lower court will determine the shares to which the sharers are entitled."

The finding on point No. 4 is that the suit is not barred by limitation.

6. Since the appellants have not challenged the remand order by filing an appeal, they are bound by the said order. That being so, the appellants are precluded from disputing the correctness of the order and also the findings on which the order is based, in any proceeding that may emerge after the remand. To put it briefly, the correctness of a remand order cannot be subjected to further investigation and consideration in view of S.105(2), Civil Procedure Code. I am fortified in this view by a pronouncement of the Supreme Court in Nainsingh v. Koonvarjee, AIR. 1970 SC. 997. The Supreme Court has stated thus:

"The order in question was made under R.23,0.41, Civil Procedure Code. That order was appealable under 0.43 of that Code. As the same was not appealed against, its correctness was no more open to examination in view of S.105(2) of the Code which lays down that where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom he shall thereafter be precluded from disputing its. correctness."

If this be not the position, the policy of the legislature to treat an order of remand as a special case and give it a finality in case the order is not appealed against, will be defeated.

7. Similarly courts cannot correct such orders of remand which have become final, in the exercise of inherent jurisdiction under S.151, CPC., since there is a remedy provided against such orders, in the CPC. but failed to avail of by the aggrieved party. This position is well elucidated by the Supreme Court in Nainsingh's case itself. The Supreme Court has held that "Under the inherent power of Courts recognised by S.151, CPC., a Court has no power to do that which is prohibited by the Code. Inherent jurisdiction of the Court must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. In other words the Court cannot make use of the special provisions of S.151 of the Code where a party had his remedy provided elsewhere in the Code and he neglected to avail himself of the same. Further the power und