IMPORTANT POINT
The right to appeal against an order of remand is independent and not extinguished by subsequent final orders in the trial court.

JUDGMENT :

Yogendra Kumar Srivastava, J.

Heard Shri Devansh Mishra, learned counsel for the appellant and Shri Pankaj Agarwal, learned counsel for the respondents.

2. The present appeal is directed against the order dated 8.5.2023 passed in Civil Appeal No. 22 of 2022, arising out of the judgment and decree dated 31.3.2022, passed in Original Suit No. 649 of 2016.

3. By order dated 31.3.2023, the trial Court had disposed of the suit upon a preliminary point, and the decree was reversed in appeal in terms of the order dated 8.5.2023, and the case was remanded to the trial Judge.

4. Counsel appearing for the respondents has raised a preliminary objection to the hearing of the present appeal by pointing out that the order of remand has been carried out and the trial Court has passed an order dated 18.8.2023 disposing of 'Issue No. 9', as directed in terms of the order dated 8.5.2023 passed in the civil appeal. It is accordingly submitted that the remedy open to the appellant would be to file an appeal against the subsequent order passed by the trial Court, and the present appeal against the order of remand is now without any purpose.

5. It is further sought to be argued that in the absence of an appeal being filed against the later order passed by the trial Court deciding the issue on which the remand had been made, the said order would remain in force even if the earlier order is set aside, and therefore, it would be an exercise in futility in reversing the earlier order by entertaining the present appeal.

6. Counsel for the appellant has controverted the aforesaid objection by submitting that an appeal against an order of remand cannot be held to have become redundant with the passing of the consequential order by the trial Court in pursuance of the order of remand. It is contended that the right of appeal granted by Order XLIII, Rule 1(u) against an order of remand cannot be taken away or nullified with the passing of the consequential order pursuant to the order of remand. Learned counsel has placed reliance upon the decision in Kanakaya v. Lakshmayya, AIR 1951 Mad 218.

7. The preliminary issue on which submissions have been made by the counsel for the parties, raises a legal question as to whether the passing of a final order pursuant to the remand would constitute a bar either to the institution or the hearing of appeal under Order XLIII Rule 1(u) against the remand order.

8. The Civil Procedure Code, 1908 (the Code) gives a right of appeal to a party aggrieved against an order of remand in a case where the decree of the appellate Court would be open to appeal and also imposes serious disability in terms of Section 105(2) precluding an appellant from taking in an appeal from the final decree any objection that might have been urged by way of an appeal from an order of remand.

9. There is no provision in the Code, express or otherwise, that may be held to have an effect of taking away the right of a party to appeal from an order of remand, in case the preliminary point on which the remand had been made, stood disposed of before the appeal against the order of remand was presented or heard and disposed of.

10. Under Order XLIII Rule 1(u), an appeal lies from an order remanding a case, where an appeal would lie from the decree of the appellate Court. This would mean that the order of remand would be appealable only in a case in which an appeal would lie from the decree which would have been passed by the appellate Court had that Court decided the case without remand.

11. In a case where no appeal is preferred from the order of remand, the party aggrieved by the order cannot afterwards dispute its correctness in an appeal from the final decree in view of the provision contained under Section 105(2).

12. Section 104, read with Order XLIII, Rule 1, expressly authorizes and creates a forum for appeal against orders falling under various clauses of Order XLIII, Rule 1. The right of appeal, thus conferred by the statute, is a substantial right,