Banerji, Aikman and Karamat Husain, JJ.
1. This is an appeal from an order of remand made under Section 562 of the Code of Civil Procedure in a suit for pre-emption.
2. The Court of first instance dismissed the suit on the 30th of April 1906, but the lower appellate Court set aside the decree of that Court and remanded the case on the 27th of March 1907. From this order the present appeal was preferred on the 29th of June 1907. Before, however, the appeal was filed, the Court of first instance had carried but the order of remand and decreed the claim on the 20th of May 1907. Hence it is contended on behalf of the respondents that the appeal cannot be entertained. As the rulings on the point are conflicting, the case has been referred to a Full Bench.
3. The first question we have to determine is whether an appeal lies from an order of remand passed under Section 562 of the Code of Civil Procedure, if before the filing of the appeal the suit has been decided in compliance with the order of remand. In our judgment the question must be answered in the affirmative. A party aggrieved by an order of remand has, under Section 588, Clause (28), of the Code of Civil Procedure, a right of appeal from the order, and the period of limitation for such an appeal is ninety days under Article 156 of the second schedule to the Indian Limitation Act. Unless, therefore, the law has imposed a restriction on this right, an appeal is maintainable if it is filed within the prescribed period of limitation. We are not aware of any such restriction, and none has been brought to our notice. The learned advocate for the respondent contends that where a party has two alternative remedies and he avails himself of one of them he cannot resort to the other, and that as the appellant has allowed the remand order to be carried out his remedy is an appeal from she ultimate decree in the case, in which he can question the validity of the order of remand. This argument is in our judgment fallacious. If after the order of remand the case is tried by the Court of first instance, it is so tried not at the instance of the party who is prejudiced by the order of remand, but in compliance with that order. It is not in the power of that party to prevent a trial, and it cannot be said that in allowing the case to be tried he resorts to an alternative remedy in respect of the order of remand. It is true that, if he can appeal to the High Court from the final decree made in the case by the lower appellate Court, he may, as held by the Full Bench in Rameshur Singh v. Sheo Din Singh (1889) I.L.R. 12 All. 510 question the legality and correctness of the order of remand, but in such an appeal the propriety of the order of remand cannot be made the sole ground of appeal. This was so held in Sheo Nath Singh v. Ram Din Singh (1895) I.L.R. 18 All. 19. Unless, therefore, he has a substantive ground of appeal to the High Court, he would have no remedy against the order of remand. The doctrine of election of remedies seems to us to have no application.
4. It is next urged that, even if the present appeal from the order of remand be entertained, the decision in the appeal will be of no avail to the appellant as the decree passed by the Court of first instance in compliance with the order of remand would still remain a valid decree. This appears to be the foundation of the decision of a Bench of this Court in Salig Ram v. Brij Bilas (1907) I.L.R. 29 All. 659. With great deference, we are unable to agree with the learned Judges who decided that case. After the Court of first instance had once decided the case, it ceased to have any jurisdiction to hear it again except on review of judgment. Its jurisdiction to hear it a second time was derived solely from the order of remand. If that order was erroneous and is set aside, everything done in pursuance of the order must fall to the ground and be of no effect. We are in full accord with the following observations of Field, J., in Jatinga Valley Tea Co., Ld., v. Chera Tea Co., Ld. (1885) I.L.R. 12 Calc. 45, which were approved of by Edge, C.J., in Rameshur Singh v. Sheo Din Singh (1889) I.L.R. 12 All. 510, Field, J., said: 'It has been contended before us that the appeal ought not be heard. It is said that after the remand order the Munsif proceeded to make a final decree and the existence of that final decree is a bar to the hearing of the appeal against the order of remand. We are unable to concur in this contention. The law, Sub-section (28) of Section 588 of the Code of Civil Procedure, expressly gives an appeal against an order under Section 562 remanding a case. That provision is not in any way qualified. The Code does not say that there shall be an appeal only if the case has not been finally determined in the Court of first instance before that appeal is preferred or comes on for hearing. 'We cannot therefore import into the Code a provision which does not there exist. The Munsif's jurisdiction to hear the case upon remand depended upon the remand order. If the remand order were badly made, the decree, and indeed all the proceedings taken under the remand order are null and void.' In his judgment in Rameshur Singh v. Sheo Din Singh, Edge, C.J., after quoting the above passage, said: 'I agree with every word in the passage which I have just quoted.' The other learned Judges apparently agreed with him. Mahmood, J., referring to a practice prevailing in this Court under which the Court declined to try an appeal from an order of remand under Section 562 on the ground that the remand order had in the meantime been carried out, observed: 'I think I must say, after what the learned Chief Justice has said in his judgment in this case, that such a practice was erroneous.' The learned Judge apparently referred to the rulings reported in the Weekly Notes, 1881, p. 211, Weekly Notes, 1882, p. 53, and Weekly Notes, 1884, p. 5, to which the learned advocate for the respondents has invited our attention. It appears to us that in the opinion of the learned judges who decided the Full Bench case of Rameshur Singh v. Sheo Din the fact of a remand order having been carried into effect before the filing of an appeal from that order or before the decision of an appeal preferred from that order would not preclude the Court from entertaining the appeal. The case of Jatinga Valley Tea Co., Ld., v. Chera Tea Co., Ld., referred to above was distinguished in Madhu Sudan Sen v. Kamini Kanta Sen (1906) I.L.R. 32 Calc. 1023 on the ground that the appeal in that case had been filed before the remand order was carried into effect. We fail, however, to see how the fact of the remand order having been complied with can make any difference in principle upon the question before us. In the case last mentioned the learned Chief Justice, Sir Francis Maclean, said: 'If a party desire to avail himself of the privilege conferred by Section 588 in relation to an order of remand he ought to do so before the final disposal of the suit. He cannot be permitted to wait until after the final disposal of the suit.' As we have pointed out above, Section 588, Clause (28), gives a right of appeal from an order of remand to be exercised within the period of limitation prescribed for such an appeal. To impose any other limitation or restriction on the right of appeal would be, to use the words of Field, J., 'to import into the Code a provision which does not there exist.' It often happens that an order of remand is carried out before the expiry of the period of limitation for the filing of an appeal. If the restriction contended for be imposed on the right of appeal, the party affected by the remand order may in many cases be without a remedy. He may not have any ground for appealing against the final decree, and he cannot, according to the rulings of this Court, appeal only on the ground that the remand order was erroneous. In our judgment the fact that the suit has been decided by the Court of first instance in compliance with an order of remand made under Section 562 of the Code of Civil Procedure is no bar to the filing of an appeal from the order of remand or to the hearing of such an appeal, and we agree with the ruling in Babu Lal v. Ram Kali Weekly Notes. 1906, p., 28.
5. Turning now to the merits of the case, we are of opinion that this appeal must prevail. The plaintiff's claim for pre-emption is based on custom as recorded in the wajib-ul-arz. According to that document, as we read it, the custom mentioned in it prevails among members of the co-parcenary body. The property sold is what is called arazidari land. It does not clearly appear what the nature of arazidari lands is. But, after referring to various settlement reports, we find that arazidars are not members of the co-parcenary body. The rule of pre-emption which applies to co-parceners is not therefore applicable to them and the plaintiff's claim must fail.
6. We accordingly allow the appeal, set aside the order of the Court below, and restore the decree of the Court of first instance. The appellant will have his costs here and in the Court below.