Wanchoo, C.J.—In this case a reference has been made by a learned single Judge, and two questions have been referred to a larger Bench for reply, namely—

(1) Whether an order of remand made by an appellate court would be covered by O. 41, r. 23 of the Civil Procedure Code even though decision of the trial court on the preliminary point on which the suit is decided is not reversed ?

(2) Whether an appeal against an order of remand purported to have been made under O. 41. r.23 would lie under O. 43, r.1 even though the order is not strictly covered by the first provision ?

2. The facts, which have led to this reference, may be briefly narrated. A suit was brought by Ratanraj for recovery of certain sum of money on the basis of a khata said to have been executed by the defendant Kripa Shanker and his brother who was father of other defendants in favour of the plaintiffs. The suit was resisted, and among other grounds the defendants pleaded that the document, on which the suit was founded, was inadmissible in evidence as it was an acknowledgment, and was not stamped. Three issues were framed by the trial court, and one of them was whether the document sued upon was admissible in evidence even though unstamped. The trial court held that the document, on which the suit was founded, was inadmissible, and therefore dismissed the suit. There was an appeal by the plaintiff. The first appellate court also agreed with the trial court that the document was inadmissible in evidence, but it remanded the suit on the ground that as the trial court had not gone into other issues, it should now decide whether the plaintiff could lead oral evidence with regard to giving of the loan. Thereupon there was an appeal to this Court under O.XLIII, r.1. In the meantime, the plaintiff had applied for refund of court fee to the first appellate court, and that court ordered refund holding that the remand was under O. XLI, r.23 It may be mentioned that the appeal in this case was filed after the order of refund.

3. A preliminary objection was taken by the respondents that no appeal lay under O. XLIII. r.1 as the remand in this case was not covered by the term of O. XLI, r.23. These two questions have been referred in connection with this preliminary objection.

4. We begin with the first question put to us. The relevant part of O. XLI, R. 23 is Where a court has disposed of the suit upon a preliminary point, and the decree is reversed in appeal, the appellate court may, if it thinks fit by order remand the case............The contention on behalf of the plaintiff is that under O. XLI, r.23, all that is to be seen is (1) whether the trial court has disposed of the suit upon a preliminary point, and (2)whether the first appellate court has reversed the decree and that it is not necessary to see whether the decision of the trial court on the preliminary point has been reversed or not.

5. We are of opinion that this is taking too literal a view of the provision of O. XLI, r.23. Where the trial court has decided a suit upon a preliminary point, the appellate court, if it reverses the decree in appeal, must come to a different conclusion on the preliminary point in order to reverse the decree. If it agrees with the trial court about the decision on the preliminary point, it is difficult to see how it can reverse the decree. For example if the trial court dismisses a suit holding it barred by limitation, and does not decide the other issues raised, the appellate court cannot possibly reverse the decree unless it reverses the decision on the preliminary point of limitation. We are, therefore, of opinion that the decision of the trial court on the preliminary point must be reversed in order to enable the appellate court to reverse the decree, and it is only then that the applicant court can remand the suit under O. XLI, r. 23. We have not been referred to any direct authority on this point,but a similar view seems to have been taken in Umar Din vs. Umar Hayat(l). In that ca

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