1. This is an appeal by the defendant from an order directing the remand of the suit under Order XLI, Rule 23 of the Code of Civil Procedure.
2. The suit was founded on a mortgage, dated the 27th February, 1920, executed by Sheoji Viahwanath in favour of the plaintiff. Sheoji Vishwanath is dead. The suit was directed against Kedar, brother of the mortgagor, and Bachcha, son of Kedar. The plaintiff alleged that Kedar and Bachcha formed members of a joint family with the mortgagor, and that the money was borrowed for legal necessity and the consideration was utilised by the joint family. The suit was resisted on the ground that the mortgage was without consideration, that there was no legal necessity and that the mortgagor was not competent to alienate the property in the shape of a mortgage, because the property was endowed property and did not belong to the mortgagor. The Court of first instance dismissed the suit, holding that, although consideration had passed, there was no legal necessity for the mortgage and that the property was waqf. The lower Appellate Court found that the mortgage was for consideration, that there was no legal necessity and that the property was not waqf. On these findings the lower Appellate Court was not justified in disturbing the decree passed by the trial Court. The lower Appellate Court, however, has upset the decision of the trial Court and directed a remand, and in doing so has asked the trial Court to try the following issues:
1. Whether the property in suit was included in the mortgage in dispute?
2. What was the personal law to which the family of the defendants was subject and whether it renounced that law? If yes, what law governs the family now?
3. What was the share to which the mortgagor would have been entitled on partition at the time he executed the mortgage, and whether the plaintiff was entitled to a decree for the mortgage-money as against the share of the mortgagor.
3. None of these issues arise from the pleadings.
The trial Court not having decided the suit on a preliminary point, the lower Appellate Court was not authorised under Order XLI, Rule 23 of the Code of Civil Procedure to direct a remand. Order XLI, Rule 23 of the Code of Civil Procedure provides that 'where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded.' The trial Court having disposed of the suit completely on the merits and on the pleadings, no issues emerged for trial which had not been disposed of by the trial Court, and it was beyond the competence of the lower Appellate Court to direct a remand upon grounds which do not arise from the pleadings. It has been argued for the respondents that the learned Judge of the trial Court ought to have framed these issues, because it appears from the pleadings that the defendants and the mortgagor are Darawar Brahmins. We are not of that opinion. We consider that these issues, if they were intended to be raised in this case, ought to have been distinctly raised in the pleadings, and that the issues ought to have been pressed for in the trial Court. What we do find is that not only they do not arise from the pleadings, but that no issues were called for in the trial Court, nor was any ground raised in the memorandum of appeal that there were some points which were material for the disposal of the suit, which not having been disposed of by the trial Court, ought to have been formulated and the case remanded. We think that the course adopted by the learned Judge of the lower Appellate Court is not sanctioned by law and the order of remand is illegal. Under the circumstances, we reverse the order of the lower Appellate Court and restore the decision of the trial Court with costs throughout. Costs in this Court will include fees on the higher scale.