A compromise decree in a previous suit upholding the status of an adopted son is binding on the reversioner in a subsequent suit, in the absence of evidence of fraud or collusion.

G. K. MISRA, J.

( 1 ) DEFENDANT No. 1 is the appellant. The dispute relates to properties belonging to one Bidya Padhan who died before 1956 leaving his widow Daimati (defendant No. 2 ). Plaintiff files the suit for a declaration that defendant No. 1 is not the adopted son of Bidya Padhan and that he is the next reversioner of Bidya Padhan on the death of Daimati. Defendant No. 2 is ex parte. Defendant No. 1 contested the suit alleging that Title Suit 110 of 1956 had been filed by defendant No. 2 on the identical ground and that it ended in a compromise decree (Ext. E) dated 21114957 in which the status of defendant No. 1 as the adopted son of Bidya Padhan was upheld. Defendant No. 1 also claimed to be the adopted son of Bidya Padhan and averred that the suit was barred by res judicata and was not maintainable as the plaintiff had no reversionary right subsequent to the passing of the Hindu succession Act, 1955, hereinafter referred to as the Act.

( 2 ) THE learned trial Court dismissed the plaintiff's suit holding that the suit was not maintainable as the plaintiff had no reversionary right, that the suit was barred by res judicata and that in fact defendant No. 1 was the adopted son of Bidya padhan. The learned lower appellate Court reversed the first two findings and remanded the suit for fresh disposal on the question of adoption on the finding that no issue was framed on that question and that the parties must be given full opportunities to adduce evidence. This miscellaneous appeal against the judgment of the learned appellate Court was filed on 5-11-1962, but before this, the learned trial Court decreed the plaintiffs suit, after remand, on 19-9-1962. No appeal has been filed against the judgment of the learned trial Court passed after remand.

( 3 ) MR. Misra raised two preliminary objections -- (i) that a Civil Revision and not miscellaneous Appeal lies; (ii) that the judgment of the learned trial Court dated 19-9-1962 in accordance with the order of remand, against which no appeal was filed, concludes the matter and the miscellaneous appeal is infructuous.

( 4 ) MR. Rath, on the other hand, contended that the findings of the learned lower appellate Court on each of the three questions were untenable in law, and particularly the judgment was based on errors of record inasmuch as there was an issue on the question of adoption and a definite plea had been taken in the written statement that the suit was barred by res judicata.

( 5 ) THE first preliminary objection, raised by Mr. Misra regarding maintainability of the Miscellaneous Appeal, must stand. Against an order of remand under Order 41, Rule 23, C. P. C. , only a miscellaneous appeal lies under Order 43, Rule I (u ). Any other order of remand is not appealable. The trial Court disposed of the suit not on any preliminary ground but on merits. The lower appellate Court had no jurisdiction to remand the suit under Order 41, Rule 23. That was clearly a remand order under Section 151, Civil Procedure Code. A Civil Revision and not a miscellaneous Appeal is therefore maintainable. Court-fees of Rs. 6/- have been paid in the miscellaneous appeal and court-fees of Rs. 7. 50 np. is payable on a civil Revision. Mr. Rath has filed an application to convert the Miscellaneous appeal into a Civil Revision by depositing an additional court-fee of Rs. 1. 50 np. I have permitted this miscellaneous appeal to be converted into a Civil Revision. The first preliminary objection, though valid, no longer stands in the way of the appellant.

( 6 ) THE second preliminary objection has no substance. In 10 Moo Ind App 203 (PC), Shama Purshad Roy v. Hurro Purshad Roy, their Lordships of the Judicial committee observed thus -

"money recovered under a decree or judgment cannot be recovered back in a fresh suit or action whilst the decree or judgment under which it was recovered remains in force; but this rule of law rests, as their Lordships apprehend, upon this ground, that the original d