B.J. Divan, J.
1. The petitioner in this Civil Revision Application is the State of Gujarat. The first opponent is the original plaintiff No. 2 and opponents Nos. 2 and 3 are the original defendants Nos. 1 and 2. This Civil Revision Application arises under the following circumstances. One Chandramani and the present first opponent filed a suit in the Court of the Civil Judge, Sr. Dn., Palanpur. The suit was filed as a representative suit by the plaintiffs on behalf of themselves and on behalf of the Vadnagar Nagar Community of Petlad for possession of a shop and for accounts in respect of the rents received and for mesne profits and costs. The first defendant was the Maharaja of Danta, in his capacity as the ruling prince of Danta. The second defendant was also the Maharaja in his capacity as the Administrator of the Joint Hindu Family of which he was alleged to be the Karta. The third defendant was a tenant in occupation of the premises in suit and the 4th defendant was the State of Bombay; and they were added as party to the suit because the State of Bombay was alleged to have taken over this particular property from the Maharaja. According to the case of the plaintiff, at Ambaji, where the shrine of Ambaji Mata is situated, the plaintiffs and members of their caste were entitled to manage the affairs of a building known as 'Madh'; and in that building of the 'Madh' there were four shops, According to the plaintiffs, the dispute related to one out of the four shops. According to the plaintiffs, defendants Nos. 1 and 2 managed the property on behalf of the plaintiffs and their possession was permissive and in no way adverse to that of the plaintiffs. The plaintiffs filed a suit for possession and account of the rents received by defendants Nos. 1 and 2 from defendant No. 3, who was the tenant of the shop and defendant No. 3, who claimed to be the tenant, inducted by defendants Nos. 1 and 2 was impleaded in that suit. The suit was filed after obtaining the sanction of the Central Government for suing. After the suit was filed in 1956, and during the pendency of the suit on October 30, 1958, the third defendant i.e. the tenant occupying the disputed shop premises, died and thereafter no steps were taken to bring his heirs on the record of the suit. The suit was disposed of by a judgment and decree of the trial Court, dated December 31, 1969, and by the decree the defendants were directed to deliver possession of the suit shop forthwith to the plaintiffs and were also directed to pay Rs. 230/- to the plaintiffs and costs of the suit. Against this judgment and decree of the learned Judge in the trial Court, there was an appeal by the State of Gujarat. During the pendency of the appeal, two applications' were preferred. One application was Ex. 14. That application was filed by the State of Gujarat applying that the legal representatives of original third defendant should be brought on record. Another application, Ex. 23, was also preferred by the State of Gujarat contending that as the original third defendant had died during the pendency of the suit and as the decree was passed against a dead person without his legal representatives having been brought on the record, the decree was a nullity and, therefore, the suit should be dismissed and the appeal should be allowed. The learned District Judge negatived this contention of the appellant, the State of Gujarat. He was of the opinion that the suit did not abate and he ordered the legal representatives of the original third defendant to be brought on record. Against this judgment of the learned District Judge, there was a Revision Application, being Revision Application No. 1126 of 1960 to this High Court. That Revision Application was decided by my learned brother Raju J. on February 6, 1963. Raju J. held that the appellate Court could only set aside abatement if the party had died during the pendency of the appeal or if the party had died after the suit had been decided but the Appellate Court could not pass any order under 0. 22 C.P.C. in respect of a party who had died during the pendency of the suit. He, therefore, allowed the Revision Application and set aside the order passed by the learned District Judge. Therefore, the appeal was again taken up for hearing before the learned District Judge and on behalf of the State of Gujarat it was contended that the decree passed by the trial Court in the absence of the legal representatives of the third defendant, who died during the pendency of the suit was a nullity and that the whole suit had abated. It was urged in this connection that in an ejectment suit a person in actual possession was a necessary party and no relief could be granted in his absence. This argument on behalf of the State of Gujarat was accepted by the learned District Judge and he allowed the appeal and set aside the judgment and decree of the trial Court. He further declared that the suit as a whole had abated and he remanded the suit to the trial Court for permitting the plaintiffs to bring the legal representatives of the deceased third defendant on record and to proceed with the case according to law. The present Civil Revision Application has been filed by the State of Gujarat against this order of the learned District Judge remanding the suit back to the trial Court.
2. The learned Assistant Government Pleader, appearing for the State of Gujarat, the petitioner in the present Civil Revision Application has contended that the order of remand was bad in law and that the learned District Judge had no Jurisdiction to remand the suit back to the trial Court. This contention must be accepted. The only power of remand that an appellate Court has, is to be found in the provisions of Order 41, R. 23 and Order 41, R. 25 C.P.C. It has been held recently by the Supreme Court that apart from these two provisions to be found in the Code of Civil Procedure, there is no other inherent power in the Appellate Court to remand the matter back to the trial Court. Under Rule 23 of Order 41 C.P. C, the Appellate Court can remand a matter to the trial Court only if the trial Court has disposed of the suit upon a preliminary point and if the decree of the trial Court is reversed in appeal. In such cases under Rule 23, the Appellate Court may, if it thinks fit, by order remand that case and may further direct that the issue or issues shall be tried in the case so remanded and shall send a copy of his judgment and order to the Court from whose decree the appeal is preferred with appropriate directions. The other rule, viz., Rule 25, of Order 41, permits not the remand of the whole suit but confers upon the appellate Court power to send down certain issues for trial to the Court from whose decree the appeal is preferred and the additional evidence may be allowed by the trial Court to be recorded but it must be borne in mind that under 0. 41, R. 25 it is not open to the appellate Court to remand the whole suit back to the trial Court. In the instant case, the provisions of Order 41, R. 23, cannot be invoked because the decision of the trial Court was not given on a preliminary point but was given after the entire evidence in the case had been recorded and the trial Court had decided the matter on merits. Therefore, it was not open to the learned District Judge to remand the whole suit back to the trial Court. To that extent the order passed by the learned District Judge was wrong in law and without any jurisdiction vested in him by law and the order passed by the learned District Judge remanding the suit must be set aside.
3. The question then arises as to what should be the appropriate order in the present matter. Mr. Karlekar, appearing on behalf of the first opponent, one of the original plaintiffs in the suit, his co-plaintiff having died during the pendency of the litigation, has urged before me that I should exercise the powers of the High Court under Section 115 C.P.C. and make such order in the case as I deem fit. With respect to the learned District Judge, he was in error when he held that the whole suit had abated. Under the provisions of Order 22, R. 4 C.P. C, when one or more defendants die and the right to sue does not survive against the surviving defendant or defendants alone, the Court on an application made in that behalf, shall cause the legal representatives of the deceased defendant to be made a party and shall proceed with the suit. In the instant case, it must be borne in mind that the main cause of action of the plaintiffs was against defendants Nos. 1 and 2. Defendant No. 3 was the tenant inducted by defendants Nos. 1 and 2 on the suit premises, If the plaintiffs succeed against defendants Nos. 1 and 2, they could obtain the accounts of the amount of rent recovered by defendants Nos. 1 and 2 from the third defendant by way of rent of the suit premises and to be accounted for by defendants Nos. 1 and 2 to the plaintiffs. So far as the third defendant was concerned, it was purely a suit for possession against the tenant and even if no decree for actual physical possession can be passed because of heirs of the deceased third defendant not having been brought on record, the right to sue did survive as against defendants Nos. 1 and 2 and also the State of Gujarat, which was brought on record as successor in interest to defendants Nos. 1 and 2. Under these circumstances, it is clear that the learned District Judge, with respect to him, was in error when he held that the suit as a whole had abated. In my opinion, the only order that can be passed in the instant case is that the suit has abated as against defendant No. 3, who died during the pendency of the suit before the trial Court but the suit as a whole cannot be said to have abated.
4. I, therefore, allow this Civil Revision Application and substitute the following order for the order passed by the learned District Judge:
The suit as against defendant No. 3 has abated and it has not abated as against the rest of the defendants.
The decree of the trial Court cannot, therefore, be said to be a nullity. The learned District Judge will now dispose of the appeal on merits and according to law. It would be open to the plaintiffs to apply to the learned Judge in the trial Court to set aside the abatement as against defendant No. 3, if they are so advised. This Civil Revision Application is, therefore, allowed and rule is made absolute. There will be no order as to costs of this Civil Revision Application.