Alfred Henry Lionel Leach, C.J.
1. The respondent filed a suit in the Court of the District Munsif of Chodavaram to recover with interest a sum of Rs. 389-8-0 which he alleged the Government had unlawfully made him pay. The respondent was the President of the Union Board of Dharmavaram, Vizagapatam district, from 1921 to the month of April, 1928. On the 30th March, 1928, the Examiner of Local Fund Accounts passed an order of surcharge against the respondent in respect of a sum of Rs. 455-8-0 on the ground that he had failed to collect arrears of house tax to this amount during the years 1921-22, 1922-23 and 1923-24, and consequently the claims had become barred by the law of limitation.
2. Rule 6 of the rules relating to the powers of auditors to surcharge, framed under Section 199(2)(0) of the Madras Local Boards Act, provides that any person aggrieved by a disallowance, surcharge or charge made against him, may apply to the principal Civil Court of original jurisdiction to set the order aside. The rule also provides that in lieu of applying to Court the aggrieved person may appeal to the Local Government. The respondent chose the alternative course, and asked the Local Government to cancel the order of surcharge. His petition was rejected, but on an application for review, the Local Government reduced the amount of the surcharge to Rs. 389-8-0, which the respondent paid under protest on the 15th October, 1928. On the 14th December, 1929, he filed this suit against the appellant, the Secretary of State for India in Council, for a decree for Rs. 426, being the Rs. 389-8-0 with interest. The respondent averred that it would have been unlawful for him to collect the arrears of tax, because, according to him, the notification under which the tax was levied was invalid. The appellant contended that the Court had no jurisdiction to try the suit. This contention was rejected by the District Munsif, who accepted the respondent's plea that the notification was invalid. The appellant appealed to the Court of the Subordinate Judge of Vizagapatam. The appeal was heard by the Additional Subordinate Judge, who concurred in the findings of the District Munsif, but at the request of the respondent remanded the case to the District Munsif to decide whether the tax could be deemed to be lawfully levied under an earlier notification. The Additional Subordinate Judge did not content himself with merely calling for a finding on this further issue, but set aside the decree which the District Munsif had passed. On remand the District Munsif held that the earlier notification was also invalid and accordingly passed a fresh decree. This resulted in the appellant again appealing to the Court of the Subordinate Judge. The Additional Subordinate Judge held that the District Munsif was also right in declaring the earlier notification to be invalid. The appellant then appealed to this Court and the appeal has been placed before a Full Bench as the Court is asked to reconsider the judgment in Jainul Abideen Marakayar v. Habibulla Sahib (1927) 27 L.W. 483 which was decided by a Division Bench.
3. In Jainul Abideen Marakayar v. Habibulla Sahib (1927) 27 L.W. 483 Wallace and Thiruvenkatachariar, JJ., held that Section 105 (2) of the Code of Civil Procedure confines an appeal against an order of remand to the question of the correctness of the order of remand. It is open to the appellant to impeach the order of remand on the ground that it was illegal as the decision of the first Court was not on a preliminary point or on the ground that the decision of the preliminary point by the first appellate Court is erroneous. The learned Judges considered that no other questions could be raised in an appeal against an order of remand whatever bearing they might have upon the merits of the appellant's case. Section 105 (2) states that notwithstanding anything contained in Sub-section (1), where a party aggrieved by an order of remand made from which an appeal lies does not appeal, he shall thereafter be precluded from disputing its correctness. Order 41, Rule 23 says 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 should be tried on the case remanded. This rule has been amended by this Court under the powers conferred upon it by the Code. The power of remand is not now confined to the case where there has been disposal of the suit upon a preliminary point.
4. The respondent contends that as there was no appeal against the order of remand passed by the Additional Subordinate Judge the appellant is precluded from raising the question whether the District Munsif had jurisdiction to entertain the suit. He says that the appellant should have raised the question of the validity of the finding with regard to jurisdiction and the legality of the later notification on an appeal from the order of remand. This contention runs counter to the judgment in Jainul Abideen Marakayar v. Habibulla Sahib (1927) 27 L.W. 483 which I consider was rightly decided. In remanding the suit, the Additional Subordinate Judge set aside the decree of the District Munsif and therefore there was no decree from which the appellant could appeal. The appellant was not aggrieved by the order of remand and therefore there was no ground here for an appeal. It would be monstrously unjust in these circumstances to hold that the appellant is precluded from raising the question of jurisdiction. He could not bring the question before this Court until the Additional Subordinate Judge had dismissed the appeal from the finding made by the District Munsif on the point left undecided by him at the first hearing. The decree of the Additional Subordinate Judge on the appellant's second appeal must be taken to embody the previous findings of the Additional Subordinate Judge that the District Munsif's Court had jurisdiction and that the later notification was invalid. I hold that the appellant has a right in this appeal to question all the decisions made by the Additional Subordinate Judge except the decision to order a remand.
5. The learned Government Pleader does not ask the Court to inquire into the validity of the notifications which have been referred to. He says that the appellant confines his case to the contention that a Civil Court had no jurisdiction to entertain the suit. In this connection he relies on the decisions of this Court in Ramachandra v. Secretary of State for India in Council I.L.R.(1888) Mad. 105 Iswarananda Bharathiswami v. The Commissioners, Hindu Religious Endowments Board : AIR1931Mad574 , Subbayya v. Thippa Reddi : AIR1939Mad967 and the judgment of the Privy Council in Secretary of State for India v. Mask & Co (1940) 2 M.L.J. 140 : 1940 L.R. 67 IndAp 222 : 1940 I.L.R. Mad. 599 (P.C.). In Ramachandra v. Secretary of State for India in Council I.L.R.(1888) Mad. 105 Kernan and Muthusami Aiyar, JJ., following English authorities, held that where by an act of the Legislature powers are given to a person for a public purpose from which an individual may receive injury, if the method of redressing the injury is indicated by the statute, the ordinary jurisdiction of Civil Courts is ousted and a suit does not lie. This maxim was applied by Curgenven and Cornish, JJ., in Iswarananda Bharatiswami v. Commissioners, Hindu Religious Endowments Board : AIR1931Mad574 and Wadsworth, J., in Subbayya v. Thippa Reddi : AIR1939Mad967 . In Kamaraja Pandiya Naicker v. The Secretary of State for India in Council (1934) 69 M.L.J. 695 Varadachariar, J., pointed out, however, that where a person's liberty or property is interfered with, under colour of statutory powers, he has a cause of action which the Civil Courts are bound to entertain unless a bar to such entertainment has been enacted by express legislation or by necessary implication. The correctness of this statement is to be gathered from the judgment of the Privy Council in the Secretary of State for India v. Mask & Co. (1940) 2 M.L.J. 140 : L.R. 67 IndAp 222 : I.L.R. 1940 Mad. 599 There Lord Thankerton in delivering the judgment of the Board said that it is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be really inferred. The exclusion must either be explicitly expressed or clearly implied. And approval was expressed of the dictum of Willes, J., in The Wolverhampton New Waterworks Co. v. Hawkesford (1859) 6 C.B. (N.S.) 337 : 141 E.R. 486 that, where a statute creates a liability not existing at common law, and gives also a particular remedy for enforcing it the party must adopt the form of remedy given by the statute.
6. Therefore, we have here two principles clearly established. The first is that to exclude the jurisdiction of the Civil Courts the exclusion must be explicitly expressed or clearly implied. The second is that where the liability is statutory as opposed to liability under the common law, the party must adopt the remedy given to him by the statute. I cannot imagine a clearer case of implied exclusion of the right to file a suit than we have here. The person aggrieved by an order of surcharge is given the right of applying--that is of making an application--to the principal Civil Court of original jurisdiction for an order remedying his grievance. If he does not want to petition the Court he may apply to Government to redress the wrong complained of. Outside Madras the principal Court of original jurisdiction is the District Court. If the respondent's contention were to be accepted, it would mean that he could apply to the District Judge to cancel the order of surcharge and direct a refund of the money which has been paid, and if the District Judge decided against him, he could then file a suit in the District Munsif's Court and ask the District Munsif to decree what the District Judge had refused. This is absurd on the face of it. The second principle also applies here. The power to surcharge does not arise under the common law but under statutory rules, and the rules provide the remedy in case of an improper surcharge.
7. In an attempt to escape from this situation, the learned advocate for the respondent has suggested that rule 6 is ultra vires the Local Government. But this suggestion must also be rejected. Sub-section (1) of the Madras Local Boards Act says that the Government may make rules to carry out all or any of the purposes of the Act not inconsistent therewith. Sub-section (2) says that in particular, and without prejudice to the generality of the foregoing power, the Local Government shall have power to make rules with regard to specified matters, and clause (o) gives them power to make rules 'as to the powers of auditors to disallow and surcharge items, and as to the recovery of sums disallowed or surcharged.' There is here full authority to make rules governing the powers of auditors to surcharge, and therefore authority to provide a remedy for the unlawful exercise of the auditors' powers. What better way could there be of controlling unlawful exercise of power by an auditor than by allowing the aggrieved person to apply to Court or to appeal to Government against the decision? I consider there is no substance in the contention that the rule is ultra vires. It may be mentioned that the contention was only put forward at the last moment in this Court and was never raised below.
8. For the reasons indicated I hold that the Court below erred in entertaining the suit and I would allow the appeal with costs throughout.
9. I agree with my Lord and have nothing to add.
10. I also agree with my Lord The Chief Justice.