Encouraged by a recent decision of Mack, J., in Venkatarama Aiyar v. Unnamalai Ammal1, Mr. V. Suryanarayana, the learned counsel for the respondents, raised a preliminary objection to the hearing of this appeal against an order of remand passed by the lower appellate Court under Order 41, rule 23, Civil Procedure Code. The argument is that the order of remand has been carried out and the suit decided and the remedy of the defendants, here appellants, is only by way of an appeal from the final decree. It is urged that this appeal against the order of remand has to be dismissed on that ground as was done by Mack, J., in the case above cited and for the same reasons. While I appreciate the vigour of the judgment of my learned brother, I venture, with respect, to think that, as an expression of legal principle, it is far from convincing. As I differ from his judgment, it is my duty and I shall endeavour to state as clearly as I can, the reasons which have compelled me to come to a different conclusion.

Under the Civil Procedure Code of 1882 there was no provision for the passing of a preliminary decree and no adjudication came within the definition of a decree unless it decided