The main legal point established in the judgment is the appealability of orders affecting the decision of the case under S. 105, Civil P. C. and the limited circumstances under which a case could be remanded for a second decision by the trial Court.

Pollock, A J C—This appeal arises out of a suit to recover Rs. 1,200 alleged to be the balance due on account of cotton and cash supplied by the plaintiffs to the defendants. At an early stage of the suit, before issues had been framed or evidence recorded, the parties informed the Court that they wished to compromise the case and the case was adjourned on one or two occasions for that purpose. On 29th February 1932 the defendants stated that the arbitrators had given their award and they asked that this award should be filed and a decree passed in its terms. The plaintiffs denied that any such award had been given and four issues were framed: first, whether the matter in dispute could be referred to arbitration without the intervention of the Court; secondly whether the reference was made by all the parties to the suit; thirdly whether an award had been given by the arbitrators and accepted by all the parties; and fourthly whether the agreement to refer, and the award, amounted to an adjustment within the meaning of O. 23, R. 3, Civil P. C. The Court of first instance held that there had been a legal reference to arbitration, that the reference had been made by all the parties, that the agreement to refer and the award would amount to an adjustment within the meaning of O. 23, R. 3, but that no award had in fact been given by the arbitrators. The Court then proceeded to the trial of the suit and eventually passed a decree in favour of the plaintiffs against two out of the three defendants for Rs. 1,200 and costs.

2. On appeal the learned Additional District Judge held that an award had in fact been given by the arbitrators, that this award was binding on all the parties, and that the suit should be dismissed in the terms of this award. It however held that it was necessary to decide the question whether the arbitrators had given their award arbitrarily without any enquiry, as was alleged by the defendants, and it set aside the decision of the Court of first instance and remanded the case for a fresh trial partly on this ground and partly on the ground that certain other pleas had not been considered.

3. Against this order of remand the plaintiffs have appealed. A preliminary objection has been taken that the suit was not disposed of in the first Court upon a preliminary point, that therefore the order was not passed under O. 41, R. 23, Civil P. C, and that therefore no appeal lies. For this proposition reliance is placed on the decision in Sobharam v. Ramprasad, 1929 AIR(Nag) 63 in which Macnair, A.J.C. held that, where a trial Court decides the suit after determining all the issues framed, the order of remand is one passed by the Court under its inherent powers and not under O. 41, R. 23, and that such an order is not a decree and is not appealable. In several cases it has been held that if a Court purports to pass an order of remand under O. 41, R. 23, even if the order was wrongly passed under that rule, an appeal will lie; for example, see Gopal Singh v. Mangal Singh, 1928 AIR(Lah) 341 Jagathari Saha v. Medini Mohan, 1927 AIR(Cal) 642, and the decision of this Court in S.A. No. 563 of 1932 Ramchandra v. Narayan, Second Appeal No. 563 of 1932. I am prepared to concede that if the Court purported to pass the order of remand under O. 41, R. 23, an appeal would lie, but I have considerable doubt whether it can be assumed that the Court purported to act under that rule merely because the form used for the order of remand was the form designed for an order of remand under O. 41, R. 23, and because a certificate was issued for the refund of court-fees. When it is perfectly clear that O. 41, R. 23, has no application I should hesitate to assume that the Court thought it was acting under that rule unless it is quite clear that it did in fact so act. In Jagannath v. Maruti,1916 AIR(Nag) 17, an appeal was however admitted against an order of remand that was held not to have been made under O. 41, R. 23, and in 26 N.L.R. 44(1);