Appeal against order of remand passed for taking further evidence.

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 the suit. Section 2(2), Civil Procedure Code of 1908, provided for the passing of a preliminary decree which determined the rights of parties with regard to all or any of the matters in controversy in the suit though it did not completely dispose of the suit. Section 97 of the Code of 1908, provided that if a party aggrieved by a preliminary decree did not appeal from it, he would be precluded from disputing its correctness in any appeal which might be preferred from the final decree. Section 562 of the Civil Procedure Code of 1882 empowered an appellate Court to remand a suit which had been disposed of on a preliminary point by the trial Court, if the appellate Court found the decision of the trial Court to be erroneous. Section 588, clause (28), Civil Procedure Code of 1882 gave a a right of appeal against an order of remand. Under the Code of 1882 it had been held by Courts that a party aggrieved by an order of remand could object to its validity in an appeal against the final decree though he might have appealed against the order of remand under section 588, clause (28) but had not done so. Subba Sastri v. Balachandra Sastri1. There was also a dissent from this view in Subbalakshmamma v. Venkatrayudu2. When the Civil Procedure Code of 1908 was enacted, the Legislature reproduced with slight variations the old sections 562 and 588, clause (28), Civil Procedure Code of 1882 in Order 41, rule 23 and Order 43, rule 1, clause (u) respectively, of the new Code, and also added a new provision in section 105(2) precluding an appellant from taking on an appeal from the final decree any objection that might have been urged by way an appeal from an order of remand. The Madras High Court in the exercise of its rule-making powers amended Order 41, rule 23, Civil Procedure Code, so as to empower an appellate Court to remand a suit even in a case where the trial Court had not disposed of it on a preliminary point. By the amendment, this Court put an end to the interminable controversy that raged round orders of remand, whether they were passed under Order 41, rule 23, Civil Procedure Code, or under the inherent powers of the Court, on the decision of which point depended the appealability of such orders. Suffice it to say that in Madras all orders of remand are now appealable under Order 43, rule 1, clause (u), Civil Procedure Code in all cases where an appeal would lie against the decree of the appellate Court. This resume of the history of legislation has been rendered necessary by the reliance placed by Mack, J., on certain decisions of the Calcutta High Court given before the coming into force of the Civil Procedure Code of 1908.

The Civil Procedure Code of 1908 not only gives an aggrieved party a right of appeal against a preliminary decree or an order of r