1. This revision application is filed by the original defendant against the order passed by the learned Assistant Judge, Amravati, in Regular Civil Appeal No. 138 of 1977 remanding the matter to the trial Court for fresh decision in the light of certain observations and directions given by him.
2. Briefly, stated the facts are that the non-applicant had filed a suit for perpetual injunction and possession of one Gandhi site. A sketch was filed along with the plaint but the correctness of the same was questioned by the applicant (defendant) who had filed his own separate sketch. It appears that during evidence, the non-applicant admitted that the plaint's sketch was not correctly drawn and did not show the correct situations. The trial Court, therefore, had dismissed the suit holding that the plaintiff failed to prove his title as per the plaint-map. In the first appeal that was preferred by the original plaintiff, the learned Assistant Judge set aside the judgment and decree of the trial court and remanded the matter for fresh trial and decision, after giving an opportunity to the plaintiff to file a fresh map or to consider the feasibility of appointing a commissioner to draw an agreed undisputed map.
3. Feeling aggrieved by this order of remand of the suit, the original defendant preferred this revision, and the preliminary question that, in my opinion, arises is about the tenability of the revision.
4. It may be pointed out that the amended Code of Civil Procedure came into force with effect from February 1, 1977 and the first appeal No. 138 of 1977 was filed thereafter, i.e., on October 10, 1977.
5. Now, under Order 4l, rule 23 of the Code of Civil Procedure, the appellate Court is empowered to remand the case only where the lower Court has disposed of the suit upon a preliminary issue. On reversal of a finding on the preliminary issue, naturally, the whole suit is remanded for decision on merits. Any remit order falling under the provision of Order 41, Rule 23 is appealable under the provisions of Order 43, rule l(u) of the Code of Civil Procedure.
6. When the order does not fall strictly within the ambit of the expressed provisions of Order 41, Rule 23 the appeal Courts, in order to meet the ends of justice, take recourse to the inherent powers under Section 151 of the Code of Civil Procedure and remit the whole suit for fresh trial, if an order of remand is passed under Section 151 of the Code of Civil Procedure and not under the specific provisions of Order 41, Rule 23, no appeal could lie, and the only remedy was to file a revision. This is obviously because an order under Section 151 of the Code of Civil Procedure does not come within the ambit of Section 104 of the Code of Civil Procedure. The Court's jurisdiction to entertain an appeal is always founded upon the expressed provisions of law. If an order of remand is one under Section 151 of the Code of Civil Procedure, no appeal lies under Order 43, r l(u).
7. After the amendment of the Code of Civil Procedure, rule 23A in Order 41 has been introduced which reads thus:
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 necessity, the Appellate Court shall have the same power as it has under rule 23.
8. It may be pointed out that even before the insertion of this new rule, some of the High Courts had amended the existing rule 23 by making provisions similar to the present amended rule 23A and embodying the inherent powers of the Court to be exercised within certain limits. The scope and ambit of rule 23 being thus made wider by certain High Court, the orders of remand falling within the wide scope of rule 23 as amended, were appealable under Order 43, Rule l(u) of the Code of Civil Procedure. But so far as the other High Courts were concerned (including our own High Court), an appeal under Order 43 Rule l(u) could lie if the order of remand fell strictly within the provisions of Order 41, Rule 23 of the Code of Civil Procedure. If an order of remand was passed not under this provision but under Section 151 of the Code of Civil Procedure, no appeal could lie, though such orders were revisable.
9. Now, after the coming into force of the amended rule 23A, the question of ordering a remand in exercise of the inherent powers under Section 151 of the Code of Civil Procedure would not arise. The impugned order, if it does not fell within the strict provisions of Older 41, Rule 23, is not now referrable to Section 151 of the Code of Civil Procedure but is now referrable to Order 41, rule 23A, and under the amended Code, rule 23A being included in Order 43, rule l(u) of the Code of Civil Procedure, only an appeal can lie against such an order. In this view of the matter, therefore, in my opinion, the present revision is not tenable and the impugned order passed by the first appellate Court, which was one passed by him under Order 41, Rule 23A of the Code of Civil Procedure, is an appealable order falling under the provisions of Order 43, Rule l(u) of the Code.
10. Shri S.N. Kherdekar, the learned Counsel for the applicant, at this stage prays that the present revision may be treated as an appeal. The. prayer is granted. The present revision shall be treated as an appeal and it shall now be placed for admission before the appropriate Bench.