JUDGMENT :- This is a plaintiffs appeal against the judgment of the District Judge of Barabanki who allowed the appeal instituted by the defendants against the decree of the Munsif of Barabanki in a suit for possession.

2. In order to appreciate the controversy in this case, a brief reference to facts may be made at the outset. One Irshad Husain made a simple mortgage of his property on 10-7-1923, in favour of defendants 1 and 2. He subsequently made a usufructuary mortgage of the property in favour of the appellant on 13-1-1928, but this is not very relevant for the purposes of this appeal. The defendants 1 and 2, who were the simple mortgagees, obtained a decree on the basis of their mortgage dated 10-7-1923 against the mortgagor but in the suit, however, they failed to implead the subsequent usufructuary mortgagee, who is the appellant in the present appeal. After obtaining the decree on the basis of the prior mortgage dated 10-7-1923, defendants 1 and 2 put it into execution against the mortgagor and this execution was transferred to the Collector.

The Collector granted a self-liquidating mortgage for 20 years in respect of the property under S. 17 of the Debt Redemption Act, and in execution of this order the defendants 1 and 2 on 21-9-1945, obtained actual possession of the plots which were in the possession of the appellant. The appellant filed an objection under O. 21, R. 100, C.P.C. but this objection was dismissed and he was ordered to seek his remedy in the proper forum. He then instituted the suit which has given rise to this appeal on 17-10-1946.

3. Defendants 1 and 2 contested the suit and contended that they were entitled to use their earlier mortgage as a shield in defence of the suit for possession although they did not implead the plaintiff, who was the subsequent transferee in the suit brought by them on the basis of their mortgage, it was further contended on their behalf that the plaintiff could not obtain possession of the property except on payment of the amount, due to defendants 1 and 2 under the mortgage held by them.

4. The learned Munsif who tried the case found in favour of the plaintiff and decreed the suit. The defendant, however, went up in appeal. The lower appellate court reversed the finding of the learned Munsif and came to the conclusion that the plaintiff ought to redeem the mortgage on the basis of which the self-liquidating mortgage was granted by the Collector in execution of the decree passed on the basis of that mortgage. He, therefore, remanded the case to the trial court with directions to find the amount payable by the plaintiff to the defendants under the prior mortgage. The plaintiff has come up in second appeal against this order of remand.

5. A preliminary objection has been taken on behalf of the respondents on the ground that an appeal against the order of remand passed by the lower appellate Court was not competent. The learned counsel relies on the provisions of O. 41. R. 23 C.P.C., and it is contended that the case has not been decided by the trial court on any preliminary point and as such the remand made by the lower appellate Court should be deemed to be a remand under the inherent powers of that Court and not under the provisions of O. 41, R. 23 C.P.C. It is now a well settled law that a remand not made under the provisions of O. 41, R. 23 or under O. 41 R. 25, C.P.C. would be a remand, under the inherent powers of the appellate Court and as such an appeal would not lie against such an order of remand. The only point which arises for consideration, therefore, is whether the order passed by the lower appellate Court was an order under O. 41, R. 23, C.P.C.

The trial court had framed three issues in this case and one of the issues was :

"Is the plaintiff entitled to possession without paying the prior mortgage, as alleged ?"

No issue was framed by the trial Court as to what amount was payable under the prior mortgage if the plaintiff was allowed possession on his paying off that

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