1. This and two other appeals were argued this morning at some length Most of the points arising for decision are common to all the three appeals and have been very elaborately argued by Mr. A. Krishnaswami Aiyar for the appellant in A. A. O. No. 170 of 1918. The lower appellate Court remanded each of the appeals for retrial and appeals purporting to be under Order 43 Rule 1(u) have been preferred to this Court. It was held in A. A. O. No. 243 of 1918 that where the order of remand was made not on a preliminary point, no appeal lies against it. Mr. A. Krishnaswami Aiyar conceded that if an order can be predicated as not falling within Order 41 Rule 23, and if it is to be held that the Court has an inherent power of remand apart from the said rule, there is no right of appeal, Further this point is concluded by authority.
2. The main argument of the learned vakil related to the inherent power of the Court to make a remand other than under the conditions mentioned in Rule 23 of Order 41; we are prepared to agree with him that Section 107 of the Code in terms only refers to Order 41 Rule 23. The word prescribed as denned in Section 2, Clause 16, seems to make this clear. But Section 107 does not contain any provision as was found in the Code of 1882, Section 564 limiting the rights of remand only to conditions prescribed by the Code. The enactment of Section 151 suggests that the legislature contemplated the exercise of powers Ex debiti Justitia which were not specifically conferred by the rules. This is the view taken by a strong Bench of the Calcutta High Court consisting of five Judges Ghuznavi v. The Allahabad Bank Ltd. I.L.R. (1917) Cal. 929. The same view was taken in Jambullayya v. Rajamma I.L.R. (1912) Mad. 492 and Kuppalan v. Kunjavalli (1913) 9 M.L.T. 373. We see no reason for not following these decisions. It is true that where a power is given expressly, courts should not exercise their inherent power which ought to be very cautiously indented upon. But this argument is not against possessing the power but is only against its improper use; we must overrule this contention.
3. Mr. A. Krishnaswami Aiyar next contended that if nothing more appears on the face of the judgment than a bare order of remand, the lower court must be taken to have acted wrongly in exercising the power under Order 41 Rule 23, rather than attribute to it the intention to exercise its inherent power as a corollary to this argument, he contended that if a wrong order is passed under the section, the right of appeal is not taken away. The corollary will be right only if the original contention is sound. Rightly or wrongly for some years, courts in this Presidency have been informed by the High Court that they have an inherent power of remand. Vide Ramchandra Joshi v. Hazi Kasim I.L.R. (1892) Mad 207, Kuppalan v. Kunjavalli (1911) 9 M.L.T. 373 and Jambulayya v. Rajamma I.L.R. (1892) Mad. 492 : 24 M.L.J. 412 . There is no reason for imputing to the lower courts ignorance of these decisions and for suggesting that the power was wrongly exercised under Order 41 Rule 23.
4. Another argument of the learned vakil is that the word preliminary' in Order 41 Rule 23 should receive a very liberal construction. We agree with the definition of that word given by Muthuswami Aiyar, J., in Kuppalan v. Kunjuvalli (1911) 9 M.L.T. 373. Prima facie the expression connotes a determination not affecting the merits of the case. This view is strengthened by the enumeration of cases relating to preliminary points contained in pages 416 and 417 of the Annual Practice, 1919.
5. The last argument was that the view of the lower appellate Court that a settlement of accounts as agent is not binding on the party as a partner is a preliminary point; we do not agree with this proposition. It is a piece of evidence, the admissibility of which was decided by the appellate Court in a particular manner. It cannot be said that this point is collateral to the merits of the case.
6. In the next appeal No. 272 of 1919, there is much to be said in favour of Mr. K.V. Krishnaswami Aiyars argument that the remand was wholly unnecessary. If we were hearing the appeal, we would not have applied the procedure adopted by the appellate Court; but it cannot be said that a reversal of the judgment with the direction to admit evidence said to have been improperly excluded is a disposal on a preliminary point.
7. Mr. Ramdoss's Appeal No. 370 of 1917 is clearly not one in which there has been a remand on a preliminary point. Civil Revision Petition No. 1211 of 1917 is dismissed without costs.
8. For these reasons, we must dismiss all the three appeals with costs.