JUDGMENT

Bennett, J - This is an application under Section 115, Civil P.C., against an order of remand passed by the learned Additional Civil Judge of Partabgarh in appeal. The suit was brought for possession of and damages in respect of certain plots of land and the principal question for consideration was whether the defendants had encroached upon portions of these plots. The trial Court held that no encroachments I had been proved. The trial Court also decided other issues in the case. In appeal the Additional Civil Judge considered that the evidence in regard to the alleged encroachments was unsatisfactory. The Munsif had issued a commission to find out by measurements whether the defendants had made encroachments. The Commissioner's report on this point was, however, found by the Munsif to be unsatisfactory. He definitely held that it was unreliable. At the same time he was of opinion that it was no good issuing another commission and he found against the plaintiffs on this issue relating to encroachments, holding that they had not succeeded in proving such encroachments.

2. The Additional Civil Judge in appeal accepted the contention advanced on behalf of the plaintiffs that they should have been given one more opportunity to prove encroachments by sending a Commissioner again to the spot. The Additional Civil Judge thought that this was a reasonable request and allowed the appeal. He set aside the decree of the trial Court and remanded the case to that Court with the direction to re-admit it at its original number and to issue a fresh commission to ascertain the facts about the alleged encroachments. He also gave certain special directions to the trial Court in this connexion. He further directed the trial Court to re-write the judgment and decide the case according to law after the report of the Commissioner had been received and objections against it considered. Evidence already on the record might be read as evidence after remand. It appears to me that the first question which arises on the present application in revision against this order of remand is whether the order constitutes a case decided within the meaning of Section 115. The learned Counsel for the applicants concedes that not a single point in the case was decided by the Additional Civil Judge. He also concedes that the case may eventually come before this Court in appeal and that it will then be open for the applicants to raise the question of the propriety of this remand order. He argues nevertheless that there is a case decided because the appeal in the Court of the Additional Civil Judge was decided and so far as that Court was concerned the case was concluded.

3. The learned Counsel for the applicants has referred to a large number of rulings, but none of them is precisely in point. It is true that in some cases there has been interference under Section 115 where the Court considered that the order of remand was passed without jurisdiction or in circumstances which constituted a material irregularity. But in none of these cases was there any consideration of the question whether the order of remand constituted a case decided. Only in one case cited was there any suggestion that the decision of an appeal of itself amounts to a case decided. This view is to be found in Motibhai Jesingbhai v. Ranchodbhai Shambhubhai, A.I.R. 1935 Bom. 222, and in that case the view expressed was clearly obiter. It was said by the learned Judge who decided that case in dealing with an argument that the order of the appellate Court was not an interlocutory order.

In view of the conclusion to which I have come, it is not necessary for me to express an opinion on that point; but I am not prepared to say that there is no force in that contention, because the whole decree of the trial Court was set aside, and for purposes of that appeal, the appeal was disposed of. Any further appeal from the original Court after remand would be a separate proceeding. In this view, it is diffi