1. This civil 2nd appeal is directed against the judgment and decree dated 13th May, 2010, passed by the 1st appellate court, District and Sessions Judge Shopian, in an appeal titled Abdul Hamid Banday v. Mohammad Yaqoob Banday, by virtue of which Judgment and Decree passed by the trial court viz. Sub Judge (Chief Judicial Magistrate) Shopian, was set-aside.

2. It appears that a civil suit titled Ab. Hamid Banday v. Mohammad Yaqoob Banday and others had been filed before the court of Sub Judge, Shopian, praying therein for a decree of declaration and permanent injunction.

3. Trial court after framing as many as thirteen issues in the matter, decided ultimately the suit in favour of defendants and against the plaintiff and ordered issuance of a decree, vide its judgment and order dated 10th April, 2008.

4. The said judgment was appealed before the court of District Judge, Shopian, who disagreed with the conclusion arrived at by the trial court, therefore, set-aside the judgment and remanded the case to the trial court.

5. Against this order of learned District Judge, Shopian, the instant civil second appeal has been preferred.

6. The moot question for consideration, in the first instance, would be, as to whether the remand order made by the Appellate Court in terms of Order XLI Rule 23, of the Code of Civil Procedure, for short CPC, can be assailed by the medium of a Civil Second Appeal? The answer is in negative for the following reasons:

7. The trial court has not decided the matter finally but has remanded it for trial in terms of Order XLI Rule 23 of CPC, thus the order falls within the compass of Order XLIII Rule 1 (U) CPC. The said Rule, for facility of reference, is reproduced herein, thus:

"An order under rule 23 or rule 23-A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court."

8. The reproduced rule position makes it explicit that order under challenge can only be questioned, by filing a Civil Miscellaneous Appeal and not by Civil Second Appeal. And that appeal is to be diarized as such and is to be determined as per the mandate of section 100 CPC. My view is fortified by Apex Court judgment reported in 2012 SCW 2523 titled Jegannathan v. Raju Sigamani & Anr. It is apt to reproduce Paragraphs 15 and 17 of the said judgment herein, thus:

"15. Insofar as the present case is concerned, the trial Court had disposed of the suit on merits and not on a preliminary issue. The first appellate Court set aside the judgment and decree of the trial Court and directed the trial Court to decide the suit afresh after giving parties an opportunity to lead evidence oral as well as documentary. The nature of the order passed by the appellate Court leaves no manner of doubt that such order has been passed by the appellate Court in exercise of its power under Order 41 Rule 23A of the Code.

17. It is clear from the above provision that an order of remand passed under Order 41 Rule 23A is amenable to appeal under Order 43 Rule 1 (u) of the Code."

9. Registry is, therefore, directed to diarize the same as Civil Miscellaneous Appeal.

10. The 1st appellate court has held that trial court has not appreciated the evidence documentary or oral while deciding the issue no. 1 and 2. Further it is held that court below has answered all other issues while deciding issue no. 7.

11. I have gone through the, pleadings and the impugned judgment and I am of the considered view that no substantial question of law is involved in the matter and no illegality has been committed by the Appellate Court while delivering the impugned judgment, therefore, is left uninterfered.

12. Appeal, in the circumstances, is dismissed as being without any merit.

13. Send down the record.

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