1. This is a reference by a learned Single Judge of this Court, and the point referred has been formulated as follows:--
'Whether an order of remand passed under Section 151, C.P.C. or otherwise and from which no appeal lies can he challenged by way of revision under Section 115 C.P.C. in view of the decision of this Court in Prohit Swarup Narain v. Gopi Nath, ILR (1953) 3 Raj 483: AIR 1953 Raj 137 (FB) (A) and whether the revision against the order of remand in the present case is competent?'
2. The law laid down in ILR (1953) 3 Raj 483: (AIR 1953 Raj 137) (FB) (A) was in these terms -
'Where it is open to a party to raise a ground of appeal in High Court under Section 105 C.P.C. from the final decree or order with respect to any order which has been passed during the pendency of the case, it should be held that an appeal in that case lies to the High Court within the meaning of the term 'in which no appeal lies thereto' appearing in Section 115 of C.P.C.'
3. The answer to the point formulated by the learned Single Judge obviously depends upon, whether it is open to a party to raise a ground of appeal under Section 105 C.P.C. from the final decree or order in the High Court, (assuming the case will come to the High Court in second appeal) challenging the correctness of the order of remand.
4. The learned Single Judge has referred to a number of cases of this Court decided after Swarup Narain's case, (A), which have considered this question, and has pointed out that some of the decisions are difficult to reconcile with one another. He has also pointed out that in almost all the decisions which have been given on the subject, Sub-section (2) of Section 105, C.P.C., and its implications do not appear to have been taken into consideration.
5. Now an order of remand can be of two kinds. It may be ah order under Order 41, Rule 23 in which case an appeal lies under Order 43, Rule 1(u) provided an appeal would lie from the decree of the Appellate Court. The question before us is not concerned with this kind of remand order. The other kind of remand order by an Appellate Court is one which is not covered by Order 41, Rule 23. Such orders have generally been held to be under the inherent powers of the Court under Section 151 C.P.C., and the question that we have to reply is whether a revision is entertainable from such an order of remand in view of the decision in Prohit Swarup Narain's case (A) for no appeal is provided against it.
6. The earliest case of this Court, to which reference may be made in this connection, is Laxman Singh v. Raj Jujar Singh, ILR (1953) 3 Raj 525 (B). That case was, however, decided before the decision in Swarup Narain's ease (A), and therefore naturally did not take into account that decision. That case, therefore, need not be treated as an authority so far as the present question formulated by the learned Single Judge is concerned.
7. The first case to be decided after the decision in Swarup Narain's case (A) was Ramsingh v. Jiwanlal, 1954 Raj LW 578 (C). In that case, Ranawat, J., followed the decision in Laxman Singh's case (B), He also distinguished the decision in Patramdas v. Mangalchand, 1954 Raj LW 182 (D) (in which the question raised was whether a revision would lie in view of the decision in Swarup Narain's case (A) from an order of amendment of plaint) on the ground that the case was not of much assistance as it dealt with a different matter altogether.
8. The next case of this Court is Srigopal v. Kanhiyalal, 1955 Raj LW 9 (E). In that case, an objection was raised that the order of remand could be attacked under Section 105 C.P.C. by taking a ground when the matter came in appeal to the High Court. But that objection was repelled with the remark that it did not affect the decision of the case on the merits.
9. The next case is Punja v. Ramlal, 1954 Raj LW 334: (AIR 1956 Raj 43) (F). It came before Modi, J. He was of the view that the revision was not entertainable as the order of remand could be challenged by way of a ground under Section 105, C.P.C. when the matter came to the High Court in appeal, and the decision in Swarup Narain's case (A) applied.
10. Then came Hemsingh v. Motisingh, 1955 Raj LW 482: ((S) AIR 1955 Raj 127) (G), decided by one of us. In that case, however, the objection based on Swarup Narain's case (A) was not raked, and therefore the decision in the case is of no assistance in answering the question which we have before us.
11. The last case in the series is Roop Narain. v. Mahabir Prasad, 1955 Raj LW 540 (H), decided by Ranawat, J. In that case, a preliminary objection was raised to the effect that the revision was not entertainable in view of the decision in Swarup Narain's case (A); but it was repelled on the ground that
''after the case would have been retried andafter both the parties would have led their evidenceafresh, the effect of the remand order in the presentease when the parties were being allowed a secondinnings to produce their evidence would run out andit would become futile for the parties to challengethe correctness of the remand order in their appealfrom the decree.'
He further added that
'the effect, if any, of remand order on the decision of the case would be too remote to be noticed, as having affected the decision.''
It was, therefore, held that the objection could not be raised under Section 105 C.P.C. as a ground of appeal, and the decision in Swarup Narain's case (A) did not apply.
12. There is no doubt that there is some conflict between these decisions, and the matter has not been considered, as rightly pointed out by the learned Single Judge, after taking into account Sub-section (2) of Section 105 C.P.C., and its implications. Sub-section (2) of Section 105 is in these terms -
'Notwithstanding anything contained in Sub-section (1), where any party aggrieved by an order of remand made after the commencement of this Code from which an appeal lies docs not appeal therefrom, he shall thereafter be precluded from disputing its correctness.'
The very fact that such a sub-section had to be enacted shows that it was open to the party to challenge the correctness of an order of remand in his grounds' under Section 105 C.P.C. This amendment was introduced to negative the view taken in Maharaja Maheshwar Sing v. Bengal Government, 7 Moo Ind App 283 (PC) (I). In that case, it was held that
'there was no Regulation which required a party to appeal from interlocutory decrees; and in an appeal to the Judicial Committee from a decree adjudicating upon the whole suit, the propriety of interlocutory decrees made in the course of the suit, though acquiesced in and submitted to at the time may be called into question.'
This was said with respect to an order of Special Commissioners of Revenue granting a review from which no appeal had been filed. This view was followed in Sheo Nath Singh v. Ram Din Singh, ILR 18 All 19 (FB) (J) where it was held that an order made under the Code of Civil Procedure from which an appeal was given under Section 588 of that Code might be questioned under Section 591 in an appeal from the decree in the suit if the ground of objection was stated in the memorandum of appeal, although no appeal from such order had been preferred under Section 588.
13. In Mahomad Najibuzzaman v. Sheo Shankar, AIR 1943 Oudh 288 (K), it was held that it was not imperative upon the suitor to appeal from every interlocutory order by which he might conceive himself aggrieved under the penalty, if he did not so do, of forfeiting for ever the benefit of the consideration of the Appellate Court. Therefore an order entertaining a claim filed beyond the period fixed in the notice could be questioned in an appeal from the final order allowing the claim, even though no appeal had been filed from the order entertaining the claim.
14. It is obvious, therefore, that even where there was an appeal provided from an order of remand, it was possible for a party to raise the correctness of the order of remand in the appeal from the decree which might be finally passed without going in appeal from the order of remand itself, and it was this view of the Courts, which was negatived by the enactment of Sub-section (2) of Section 105 C.P.C. It follows from this that as there is no appeal provided from an order of remand under Section 151 C.P.C., the order can always be challenged in the appeal that might be filed from the decree finally passed. The older cases took it for granted that an order of remand affected the decision on the merits, for generally speaking there would be more evidence available which was not there before the order of remand, and the letting in of this extra evidence would affect the decision of the case on the merits.
In this view of the matter, we find it difficult with all due respect, to accept the view taken by Ranawat, J., and Sharma, J., in the cases cited already. It seems to us clear after considering the implications of Sub-section (2) of Section 105 that an order of remand always affects the decision of the case on the merits for it will let in fresh evidence which may affect the decision. Therefore, an order of remand can always be challenged under Section 105 C.P.C. on an appeal from the final decree. Under these circumstances, unless there is a bar under Sub-section (2) of Section 105, an order of remand can always be challenged under Section 105 on an appeal from the decree finally passed.
Where the order of remand is under Section 151, C.P. C., or is not covered by the express terms of Order 41, Rule 23, C.P.C., it is not open to appeal. Sub-section (2) of Section 105, therefore, would not apply except to an order which is expressly covered by Order 41, Rule 23.
It follows therefore that an order of remand passed under Section 151, C.P.C., or which does not come within the express terms of Order 41, Rule 23, C.P.C., and from which no appeal lies, cannot be brought in revision because the decision in Swamp Narain's case (A) would stand in the way. That case lays down that if the order can be challenged by a ground of appeal under Section 105, C.P.C. in the appeal which might finally come to the High Court, the order is not revisable under Section 115 as the case is covered by the words 'in which no appeal lies thereto', namely to the High Court. It cannot be said that the order of remand runs out, and its effect on the decision of the case is too remote. The result of an order of remand is generally to admit more evidence in the case, and the admission of more evidence in the case obviously affects the decision of the case on the merits.
15. Our answer to the question, therefore, is this -
Where an order of remand is passed under Section 151, C.P.C., or where the order is not covered by the express terms of Order 41, Rule. 23, and if no appeal lies fvom such an order of remand, it cannot be challenged by way of revision under Section 115, C.P.C. in view of the decision of this Court in Swarup Narain's case (A), as the order of remand can be challenged on an appeal from the final decree under Section 105, C. P. Co (assuming always that the decree can be brought in appeal to the High Court).
In the present case, the suit was for the recovery of possession of a house and second appealwould lie to this Court. As such, the order of remand passed in this case by the first Appellate Courtcould be challenged under Section 105, C.P.C. in thesecond appeal which would finally lie to this Court,and therefore the present revision against the orderof remand is incompetent. Let this answer be returned to the Bench concerned.