1. Whether an appeal lies against an order of Appellate Court passed under Order 41 Rule 23 or 23-A C.P.C. for remanding a case for re-trial to the Trial Court after setting aside its decree, as a matter of right on a question of fact as well as question of law? is the vital question involved in this case.

2. The defendant-appellant has filed this Civil Second Appeal against the judgment of learned 2nd Addl.District Judge Jammu dated 30.4.2005 whereby the learned District Judge has set aside the judgment and decree of the trial court dated 22.1.2003 and remanded the suit back for re-trial after framing issues afresh as per pleadings of the parties. Since the Ist Appellate Court has not dismissed or decreed the suit of the plaintiff its judgment cannot be treated as decree and therefore civil second appeal u/s 100 CPC does not lie. Faced with such situation learned counsel for the appellant submits that his appeal be treated to be an appeal under Order 43 Rule 1(u) CPC and he submits that the appeal is maintainable under the said provision of law as a matter of right.

3. The facts of the case briefly stated are that plaintiff-respondent herein filed a civil suit against the defendant

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