( 1 ) THIS is an application in revision against an order of remand dated the 22nd of December, 1952, made by the Civil Judge of Farrukhabad.

( 2 ) THE matter came up before a learned single Judge of this Court and in view of certain important questions of law which arose in the case he has referred it to a Bench for decision.

( 3 ) THE facts may be briefly stated. A suit was filed for an injunction and for recovery of Rs. 500/as damages. The trial Court gave the plaintiff a decree for injunction and for damages to the extent of Rs. 200/- only. One of the defendants preferred an appeal. The plaintiffs filed a cross-objection in respect of that part of the damages which had been disallowed by the trial court. The lower appellate Court went into the questions that were raised by the parties and came to the conclusion that the trial of the case by the Munsif had been unsatisfactorily conducted and that there had been no clarification of pleadings of the parties; nor had proper issues in the case been struck. The lower appellate court therefore remanded the case, acting apparently under its inherent jurisdiction and not under any specific provision of the Code of civil Procedure. The operative portion of the order of the Court below is in these words :

"the result is that the appeal is allowed. The judgment and decree of the trial Court are set aside. The suit is remanded for retrial with the directions that after clearance of pleadings where necessary the trial Court will frame specific issues on all the points, 1 to 7, set out in this judgment and will give parties an opportunity to produce evidence on them. It will then proceed to decide the suit according to law. "

( 4 ) BEFORE us the contention of Mr. Saksena may conveniently be considered in two parts. First, whether the power of the appellate Court with regard to a remand under Section 107 of the Code of Civil Procedure of 1908 is restricted to the case specified in Order 41, Rule 23; and, second, whether it was competent to the appellate Court to remand a case in which in the opinion of the court there has been no proper trial.

( 5 ) AS regards the first part, in order to ascertain the intention of the Legislature on the point we think it is useful to examine the state of law at the time the 1908 Code was passed.

( 6 ) UNDER the Civil Procedure Code of 1882, the section which corresponded in effect to Order 41, Rule 23 was Section 562. That section, however, was followed by Section 564 which provided that

"the appellate Court shall not remand a case for a second decision except as provided in Section 562. "

6a. Section 566 of the 1882 Code corresponded to Order 41, Rule 25 of the present Code.

( 7 ) IT has been held that though the Code of Civil Procedure of 1882 bound all Courts as far as it went, it was not exhaustive and did not affect previously existing powers, and that in matters with which it did not deal the Court would exercise inherent jurisdiction to do that justice between the parties which was warranted by the circumstances and which the necessities of the case required and that in spite of the express provision of section the appellate Court was not precluded from remanding a suit in a case to which neither Section 562 nor Section 566 applied. Reference in this connection may be made to the cases of Habib Bakhsh v. Baldeo Prasad, ILR 23 All 167 (A) and Hukum Chand Baid v. Kamalanand Singh, ILR 33 Cal 927 (B ).

( 8 ) THE law being as stated above with regard to the power of remand, the Civil Procedure Code of 1908 was passed. The scheme of this Code is different from that of 1882. A general power is given by Section 107 which is made by its terms subject "to such conditions and limitations as may be prescribed" (which means prescribed by rules) and the provisions of Sections 562 and 566 of the old Code are in effect reproduced in Order 41, Rules 23 and 25; and Section 564 has not been re-enacted either in the Code itself or in the rules. Further a ne