1. This is an appeal by the plaintiff against an order of the District Judge of Vellore, dated the 5th March, 1946, remanding the suit for fresh disposal on two further issues framed with permission to the District Munsiff to admit fresh evidence at his discretion. The entire records which have been called for to clear up some doubtful points show that the suit was dismissed on 3rd July, 1946, after a fresh hearing in compliance with the remand order, and at that fresh hearing the appellant who appeared through an advocate took the suit to a conclusion on the basis of the remand order without in any way objecting to it. The plaintiff filed this civil miscellaneous appeal against the order of remand on 4th September,1946, i.e., nearly two months after the final disposal of the suit. He has also filed an appeal before the District Judge against the ultimate dismissal of his suit.
2. Without going into the merits I think that a preliminary objection taken to the maintainability of this appeal must be upheld. It is conceded that it was filed in this Court in time, there being a long delay in the grant of a copy. The appellant however subsequent to the remand order did nothing whatsoever to signify to the learned District Judge his intention of appealing against the remand order or to apply to him for stay of further proceedings. Nor did he make any such application to this Court. He obviously took his chance of success or failure in the District Munsiff's Court on the basis of the remand order. Having failed there, he now seeks to undermine the remand order itself in this appeal. An appeal against a remand order is provided for by Order XLI, Rule 23, Civil Procedure Code, and as it was admittedly filed in time Mr. Rangaswami for the appellant urges that it is maintainable. He relies on a Bench decision of this Court in Lakshmi v. Manidevi : (1911)21MLJ1063 , in which the point which fell for direct decision was whether an appeal against a preliminary order in execution could be filed even after the date of the final order which merely carried out and was consequential to the preliminary order. No appeal had been filed against the final order itself. Sundara Ayyar and Phillips, JJ., held that such an appeal could be filed and made observations by way of analogy to the effect that an appeal against an order of remand could also be filed even after the date of the final decree consequential on remand. I have perused this decision very carefully and do not consider myself bound by all the observations therein so far as remand orders are concerned which did not fall directly for decision. Following that decision I should have had no hesitation at all in holding this appeal to be maintainable, although filed after the final decree consequent on remand, had the appellant signified his intention of appealing against the order of remand by applying for stay and had stay been refused-a most unlikely contingency. He did nothing of the kind and submitted himself to the scope of the remand order without making any protest.
3. No direct Madras decision on this point has been placed before me. There are however a number of decisions of the Calcutta High Court which have clearly held that such an appeal is not maintainable if the appellant raised no objection at or before the re-hearing of the suit. This has become well-established law in the Calcutta High Court in a number of decisions: Madhu Sudan Sen v. Kamini Kanta Sen I.L.R. (1905) Cal. 1023, Baikuntha Nath Dey v. Nawab Salimulla Bahadur (1907) 12 C.W.N. 590, Mackenzie v. Narasingh Sahai I.L.R. (1909) Cal. 762, the most recent decision placed before me on the point being Sheik Salim v. Hajira Bibi I.L.R. (1927) Cal. 506. In Madhu Sudan Sen v. Kamini Kanta Sen I.L.R. (1905) Cal. 1023, Maclean, C.J., made the following observation:
If a party desires to avail himself of the privilege conferred by Section 588 (which corresponds to Section 105, Clause (2), Civil Procedure Code) in relation to an order of remand he ought to do so before the final disposal of the suit. He cannot be permitted to wait until after the final disposal of the suit and then to appeal against the interlocutory order without appealing from the decree in the suit.
The first three Calcutta decisions were in fact considered in Lakshmi v. Mani Devi : (1911)21MLJ1063 , but that decision did not consider or decide the main point which arises for decision in the present civil miscellaneous appeal, viz., the obligation on the appellant who seeks to set aside a remand order to signify his protest against it before the suit on its basis is tried and taken to a conclusion. This point has been specifically decided by Page and Graham, JJ., in Sheik Salim v. Hajira Bibi I.L.R. (1927) Cal. 506, where it was clearly held that such an appeal was not maintainable inasmuch as the defendant-appellant did not raise any objection at the re-hearing of the suit on the merits, and no appeal was preferred from the final decree fro the lower appellate Court. In the present case there is only this difference, viz., that the appellant has filed an appeal against the judgment after remand in the District Court and has also simultaneously filed this civil miscellaneous appeal against the order of remand itself.
4. It appears to me that there are some fundamental differences between a preliminary decree in execution and a final decree worked out on its basis which formed the basis of fact in Lakshmi v. Mani Devi : (1911)21MLJ1063 . Their Lordships in that decision proceed on the assumption that remand orders and subsequent judgments on their basis were analogous to preliminary decrees and final decrees. I think I would be justified in regarding the expressions of opinion as regards remand orders in that decision as being in the nature of obiter dicta and outside the scope of the matter which fell for decision. In the case of a remand it may often be that the first appellate Court formulates an entirely fresh footing on which the parties should proceed to a fresh trial and if the parties do so without in any way signifying or indicating their non-acceptance of this new basis for a fresh hearing, by adopting the simple method of applying for stay of further proceedings under the remand order, they must be deemed to have accepted the new basis and submitted to a fresh trial on the new footing. The only difference between the facts here and those in Sheik Salim v. Hajira Bibi I.L.R. (1927) Cal. 506, is that no appeal was preferred from the final judgment after remand to the lower appellate Court, and that judgment was sought to be undetermined by filing an appeal against the order of remand after the final decree. I do not think that the fact that the appelant here has also filed an appeal in the lower appellate Court makes any difference. In fact that appears to me now his only and correct remedy. It is also manifestly embarrassing, apart from other considerations, that one appeal against the remand order should be pending in the High Court and another appeal against the decree after remand should be simultaneously pending before the District Judge. The appellant having chosen to take his chance of a decision in his favour on the basis of the remand order must seek his relief in the lower appellate Court.
5. I should like to deal with the final argument that the appellant cannot be deprived of his statutory right of appeal against the remand order to this Court. Successive Indian Legislatures have sought to safeguard the rights of litigants by very generous provision for appeals and second appeals, not by any means complimentary to trial Judges. The cycles of appeals the law permits in India have no parallel in the juristic history of any other country so far as I am aware. It is necessary that these wide privileges of appeal should be exercised within the confines of reason and practicality.
6. The appeal is in the result dismissed with costs and an advocate's fee of Rs. 35.
7. Leave granted.