( 1 ) THE appellant has challenged that part of the order passed by the Additional Judge to the Court of District Judge, Shivpuri, in Civil Appeal No. 30-A of 1983 dated 25-3-1985, by which he has been refused the refund of the Court-fees, as provided in S. 13 of the M. P. Court-fees Act, 1870.

( 2 ) THE short facts out of which this appeal arises, are that the appellant filed a suit against the respondents in the Court of Second Civil Judge Class II, Shivpuri, being Civil Suit No. 104a of 1982. On 5-1-1983 this suit was dismissed. The appellant preferred an appeal in the Court of the Additional District Judge, Shivpuri. That appeal was disposed of by the first appellate Court and in paras 10 and 11 of the impugned judgment, the appellate Court framed 3 issues, quashed the judgment and decree passed by the trial Court and passed a wholesome remand order directing the trial Court to record the evidence of the parties on the issues according to law. It was also directed that the parties shall be at liberty to make amendments in their respective pleadings and adduce evidence. It was, thus, clearly a wholesome remand order. The appellant is not aggrieved by this order. He is aggrieved by the order passed by the first appellate Court in Para 14 of the impugned judgment.

( 3 ) IN Para 14 of the impugned judgment, the appellate Court has observed that as the plaintiff-appellant has not filed any application before the trial Court for framing correct issues, he is not entitled for the refund of the Court-fees under S. 13 of the M. P. Court-fees Act, 1870 (for short, hereinafter referred to as 'the Act' ). This part of the order passed by the appellate Court is prima facie incorrect. It is the duty of the Court, after perusal of the pleadings of the parties, to frame the issues. If there is any defect in framing of the issues, and any of the parties does not pray for correction, addition or substitution of the issues, then that party cannot be penalised by a Court of law. The penalty imposed by the learned first appellate Court deserves to be set aside.

( 4 ) LEARNED counsel appearing for the State, Ku. Shanti Shrivastava, has contended that as the remand order is passed under R. 23 of O. XLI, C. P. C. , the Court-fee paid in the appellate Court cannot be directed to be refunded under S. 13 of the Act. According to the Amendment Act of 1976, another provision has been added as S. 23-A in the Code of Civil Procedure. It is being reproduced, for convenience, below: -"23-A. Remand in other cases.- Where, the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under R. 23. "the distinction between the power of remand under R. 23 and R. 23-A is very clear. No order of remand can be made under R. 23 unless the trial Court has disposed of the whole suit, and not a portion of it, an a preliminary point and the appellate Court reverses the decree in appeal. R. 23-A will come in when the trial Court has disposed of the entire case otherwise than on a preliminary point and that decree is reversed in appeal and a re-trial is considered necessary. In that contingency the appellate Court will have all the powers mentioned in R. 23 of the Code. In view of this clear distinction, it is very much apparent that the remand order made by the appellate Court is covered by R. 23-A of O. XLI, C. P. C. My this view is further strengthened by a judgment of the Supreme Court in the case of State of U. P. v. Chandra Bhushan Misra, AIR 1980 SC 591. ( 5 ) S. 13 of the Act is being reproduced below for the sake of convenience:"13. if a suit is remanded in appeal, on any of the grounds mentioned in S. 351 of the same Code for a second decision by the lower Court, the appellate Court shall grant to the appellant a certificate authorising him to receive back fro