1. These two appeals, First Appeal from Order No. 78 and Second Appeal No. 647 of 1915, have arisen out of certain proceedings in an appeal before the Subordinate Judge of Gorakhpur and Basti.
2. It appears that the plaintiff-appellant Ram Sarup Sahu brought a suit for possession against the defendant. The suit was dismissed by the learned Munsif, who framed eight issues and came to findings on every one of them. As the result of the trial by the first Court the plaintiff's suit was dismissed with costs. The appeal came before the Subordinate Judge of Gorakhpore and Basti. After hearing the case submitted to him by the plaintiff-appellant he passed an order which purported to be under Order XLI, Rule 28, of, the Code of Civil Procedure, that is, he set aside the decree of the Court of first instance and sent the case back for trial on the merits with directions to admit any further evidence which the parties might desire to produce. When he came to draw up the remand order he put upon the plaintiff certain terms, for from the language of the remand order it is very clear it was being' made in the interests of the plaintiff. Accordingly when drawing up the remand order the Subordinate Judge called upon the plaintiff to pay the costs of the respondent in both Courts within seven days, and in the event of default of payment the appeal was to stand dismissed with costs.
3. The plaintiff appeals to this Court and the appeal is directed against the order for the payment of costs, i.e., it is argued here for the plaintiff that the Subordinate Judge had no power to impose the terms as to the payment of costs just referred to. The Second Appeal No. 647 is directed against the decree by which the learned Judge of the Court below set aside the decree of the Munsif and remanded the case to that Court to be decided on the merits. We have already mentioned that the Munsif dealt with all the issues which arose in the case and came to findings on them and this being so, the order of the lower Appellate Court in so far as it remanded the case under Order XLI, Rule 23, was not a proper order and cannot in any way be supported, as the Court of first instance did not dispose of the case on a preliminary point and it follows, therefore, that the learned Subordinate Judge had no authority to remand the case for trial on the merits. It was open to him to remit an issue under Order XLI, Rule 25, and from what he subsequently ordered it appears that this was his intention; however, this was not done.
4. It has been objected on behalf of the defendant that the plaintiff is not entitled to attack this order of remand, inasmuch as he submitted to the case being sent down and undertook to comply with the terms imposed by the learned Subordinate Judge. It has, however, been contended by the learned Counsel for the appellant that when he undertook to pay costs it was on the understanding that only one particular issue was to be remitted for trial to the Court of the Munsif.
5. We have no alternative but to set aside the order of remand and direct the, learned Subordinate Judge to take up the casa at the stage where he left off and if he is of opinion that either of the parties has made out a case for the reception of additional evidence he will act under Order XLI, Rule 27.
6. The result is that we allow the Second Appeal No. 647 of 1915, set aside the order of the lower Appellate Court and direct that the case go back to the lower Appellate Court for disposal according to law. In view of our decision in Second Appeal No. 647 it is not necessary for us to go into the question raised in First Appeal from Order No. 78 of 1915, which is naturally allowed. We direct that each party bear his own costs.