Modi, J.—This is a defendants appeal against an order of the District Judge, Jodhpur, dated 10th September, 1952, by which he accepted the plaintiffs prayer for amendment of his plaint and remaned the suit to the trial court to be proceeded with according to law.

2. It is not necessary to state the facts, out of which this appeal has arisen, at any length. The plaintiff Ramlals case was that he had entered into a partnership with the defendants in connection with the sale of certain bullocks whom the defendants have sold but the latter had failed to pay the plaintiff the price realised by the sale of the bullocks as well as the profits made out of such sale. The plaintiffs allegation was that the bullocks had been purchased by him with his own money. The defendants raised a number of pleas with which we are not concerned for the purposes of the present appeal, and the contention which it is necessary to mention is that the plaintiffs suit as framed was not maintainable and that he should have brought a suit for dissolution of the partnership and rendition of accounts. A prayer was made to the trial Judge for amendment of the plaint during the course of the trial but it was turned down. The trial court framed 11 issues, recorded evidence on all of them, and decided almost all the issues in favour of the plaintiff but dismissed the suit on the ground that it was not maintainable in the form in which it was instituted. The plaintiff went in appeal to the learned District Judge. The latter came to the conclusion that the trial court should have allowed the amendment of the plaint in the circumstances of the case in conformity with the provisions of O.VI, r.17 C. P. C, and in that view reversed the decree of the trial court and remanded the case back to it for trial according to law. This appeal has been preferred from the above order.

3. Learned counsel for the respondent raised a preliminary objection as regards the maintainability of the appeal. His contention was two-fold. First, that the decision of the trial court in the present case, inasmuch as it had been given on all the issues raised at the trial, could not be held to be a decision of O.XLI r. 23 C.P.C. In the second place, it was contended that the lower appellate court in the present case had not reversed the finding of the trial court on the preliminary point but had in effect agreed with it. All it had done, however, was to have accepted the prayer of the plaintiff for the amendment of his suit, and it was, therefore, argued with great force that such an order was not covered by the provisions of O.XLI r.23 and must be deemed to have been passed under sec. 151 C.P.C. On the other hand, it was argued by learned counsel for the appellants that inasmuch as the court below had not specifically stated whether it had passed the order of remand under O. XLI r. 23 or under any other provision of law, it must be deemed that the order passed was under that provision, and an appeal must be held to lie from such an order. Learned counsel referred me to Kulsoonminnissa vs. Ram Prasad(l), Gokul Prasad vs. Ram Kumar(2), Umesh Narain vs. Secretary of State(3) and Mst. Sahibji vs. Md. Sarwar Khan(4) in support of his contention.

4. Now, it is true that the lower appellate court in this case did not say in so many words whether it had passed its order of remand under O. XLI r. 23 or not; but in my opinion, it will not be right merely from this to presume that its order had been necessarily passed under O. XLI r. 23 even though the provisions of that rule had or could have no application whatsoever to the order passed in this case. With great respect to the learned Judges who have laid down the dicta to the contrary, I am unable to hold that they lay down good law. In my humble judgment, the provisions of O. XLI r. 23 C.P.C. are clear and a case must satisfy those provisions before it can be held that that rule applies to a given case. Any other view, in my opinion, would lead to anomalou

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