Abdur Rahim, J.
1. One of the grounds taken in this appeal is that the order of remand by the District Judge, dated the 23rd February 1903, passed in Appeal No. 48 of 1902, was illegal. The suit was for a declaration of title to three plots of land and for an injunction. The plaintiff filed a plan (exhibit A). No exception to this plan seems to have been taken by the defendant before the District Munsif. The plaintiff got a decree. On appeal the District Judge held that that plan (exhibit A) was most unsatisfactory, and that, for the decision of the suit, it was necessary to have a proper plan prepared. He, therefore, remanded the suit for re-trial under Section 562 of the Civil Procedure Code. The District Munsif again gave a decree for the plaintiff. The District Judge reversed that decree and hence this second appeal.
2. The order of remand was clearly illegal, for the District Munsif had disposed of the suit not on a preliminary point but on the merits. If the District Judge required a better plan he could have called for it him self, and then dealt with the evidence with reference to the new plan.
3. It is clear, however, that the appellant was in no way prejudiced by the order of remand, and it is therefore argued that, with reference to the provisions of Section 578, Civil Procedure Code, we should not interfere. In Subba Sastri v. Balachandra Sastri (1), where it was held in second appeal that the order of remand was illegal, all the proceedings subsequent to the order of remand were set aside. Section 578, Civil Procedure Code, was not referred to. In Mallikarjuna v. Pathaneni 19 M.k 479, it was held that the order of remand was ultra vires and illegal. There are, however, observations to the effect that if the merits of the case were not affected by the remand, Section 578, Civil Procedure Code, might apply. In The Manager of the Court of Wards, Kalahasti Estate v. Ramasami Reddi 28 M.k 437, it was held that a remand, contrary to the provisions of Section 564, Civil Procedure Code, was not merely irregular but illegal. For this the ruling of the Judicial Committee in Subrahmania Ayyar v. King-Emperor 25 M.k 61 Was relied upon. That was a case under the Criminal Procedure Code, but there are observations at page 98 of the report which show that the same view would have been taken of disobedience to an express provision of the Civil Procedure Code as to a mode of trial. The illegal remand in the present case cannot, therefore, be treated as a more irregularity and Section 578, Civil Procedure Code, has no application. It was held, however, by Subramania Ayyar, J., in The Manager of the Court of Wards, Kalahari Estate v. Ramasami Reddi 28 M.k 437, Moore, J., dissenting, that an illegal order of remand might be validated by consent or waiver, and it is therefore argued that we should not interfere because the plaintiff did not appeal against the order of remand or object to the District Munsif going on with the suit. As to the first of these reasons, the plaintiff had the right either to appeal under Section 588(28), Civil Procedure Code, against the order of remand, or to take objection in second appeal. This is not disputed, and there is authority for it in Subba Sastri v. Balachandra Sastri 18 M.k 421. Failure to appeal under Section 588(28) cannot therefore be treated as consent or waiver. As to the second reason the plaintiff could not prevent the trial from going on. Thus, even if the view taken by Subramania Ayyar, J., be followed, the argument fails. We, therefore, have no alternative but to set aside the decree of the District Judge, the second decree of the District Munsif and the remand order of the District Judge and to remand the Original Appeal No. 48 of 1902 for disposal according to law. Costs will abide the event.