Madhavan Nair, J.
1. This appeal is preferred by the defendant against the order of the District Judge of Kurnool remanding O.S. No. 486 of 1924 to the District Munsif for disposal on the merits. The respondents, viz., the plaintiffs have taken the preliminary objection that under Order 43, Rule 1 Clause (u) read with Order 41, Rule 23, no appeal lies against the order of the District Judge on the ground that the case was disposed of by the District Munsif on the merits and not on a 'preliminary point.' The plaintiffs' suit was for the recovery of the amount of a policy in the Oriental Life Assurance Company, Bombay, held by the deceased husband of the defendant, who was their brother. They alleged that their brother was educated up to the Intermediate class at the family expense and that his earnings as a teacher Which he was able to make result of this education and which he had invested in the Life Assurance Company became property that was partible against the members of this family. The defendant contended amongst other things that assuming that her husband was educated at the expense of the family he was given only 'a general education,' by the family and consequently his earnings became his self-acquisition and should not be regarded as partible. On these contentions the District Munsif framed issues:
1. Whether the defendant's husband was not educated at the family expense?
2. Is the plaintiff entitled to the declaration sought for?
3. What relief?
2. On the first issue, as no evidence was adduced by either side at the trial, he found that the defendant's husband was educated at the family expense.
3. As regards the second issue he pointed out that the parties went to trial on the footing that
the defendant's husband was given a general education at the expense of the joint fumily
and he also remarked in the course of the judgment that
in this case there is no question of specialised education
it is admitted by both sides that the defendant's husband was given a general education at the family expense.
4. On these admissions he decided having regard to the wellknown decisions of the Privy Council, that since the education given to the defendant's husband was not a specialised education which involved a detriment to the family estate, his earnings became his self-acquisitions and were not partible and so dismissed the plaintiff's suit.
5. On appeal, the learned District Judge thought that the District Munsif did not approach the question from a proper standpoint. He therefore framed the following questions for the Munsif's consideration.
1. Whether the defendant's husband's family was in such affluent position as would require it to give him education up to the Intermediate standard without expecting a return from it?
2. Whether the education of the defendant's husband up to the Intermediate standard caused a detriment to the family estate regard being had to its financial state?
3. Whether the defendant's husband acquired the money contributed to the Life Assurance Company by his personal qualities as the District Munsif states and not owing to the education imparted to him at the expense of the family.
6. The learned Judge then pointed out that the District Munsif did not call for evidence to arrive at an answer to the said questions but merely assumed that education imparted to the defendant's husband was of such a kind as would not render the wealth acquired by it partible. He therefore remanded the suit for fresh disposal. (See para. 3 of the appellate Judgment).
7. From what we have stated above, it is clear that the decision of the case by the District Munsif was not on a preliminary point as explained by the decisions of this Court in the Full Bench judgment. In Rama Nair v. Krishna Nambudripad A.I.R. 1922 Mad. 505 the learned Chief Justice pointed out that a preliminary point under Order 41, Rule 23, is any point, the decision of which avoids the necessity for the full hearing of the suit, and he gave various instances of the points which may be considered as preliminary points in the decision of a case. Having regard to this definition and the illustrations it is clear to our minds that the decision of the case by the District Munsif cannot be said to be on a preliminary point. There can be no doubt that he has disposed of the case on the merits. On the points at issue, the parties to the case made some admissions and on the strength of those admissions in the light of what he considered to be the law relating to the subject he disposed of the ease. Mr. Somayya argues that the present case falls within the fourth illustration given by the Chief Justice which is thus stated in his judgment that on the plaintiffs' evidence there was no case for the defendant to answer.' We cannot agree. In the illustration, only the plaintiff's evidence has been given and on that the case has been disposed of without the defendant offering any evidence because there was no case for him to answer. In the present case, both sides gave evidence in the sense that they made certain admissions to the Court and asked the Court to adjudicate on their contentions with reference to those 'admissions. The case of both parties was therefore before the Court and there was a complete adjudication of their case. The decision in Malayandi Goundan v. Bomman Poosari A.I.R. 1923 Mad. 831 was relied upon to show that if the Subordinate Judge purported to act under the power that he possessed but made a wrong order in the exercise of that power an appeal will lie. That decision as explained in Radhakrishna Rao v. Venkata Rao A.I.R. 1925 Mad. 229 does not lay down more than, 'that the inherent' power of the Court to remand if existent at all, should not be exercised in any case in which another procedure, more definitely laid down by the Code, may be followed and, therefore, cannot help the appellant. The decision in Radhakrishna Rao v. Venkata Rao has been followed by this Court in subsequent decisions; see Karuppanna Pillai v. Ethumalai Pillai : AIR1927Mad859 , Mallayya v. Veerayya A.I.R 1927 Mad. 335. We must there fore hold that there is no appeal in this case.
8. We are then asked by the appellants' learned Counsel to deal with the case as a civil revision petition. We accede to this request inasmuch as there has been in our opinion a clear material irregularity in the disposal of the case by the learned- District Judge. From the full statement of what actually happened in the case as given above it will become clear that both the parties declared that they had no evidence to offer on the questions at issue and asked the Court to deal with the case on the admissions made by them. There was no affidavit before the lower appellate Court questioning the correctness of the statements contained in the District Munsif's judgment. In these circumstances we think it was highly irregular on the part of the District Judge to allow the appellant to raise new questions and to ask the lower Court to call for fresh evidence on the new point and to dispose of the case afresh. Exercising therefore our powers under Section 115, Civil P.C. we set aside the order of the lower Court. The learned District Judge will now proceed to dispose of the case on the materials which he has before him. In this Court each party will bear his own costs. The other costs will be provided for by the lower appellate Court.
9. I agree with my learned brother whose judgment I have had the advantage of perusing and I wish to add a few words.
10. As regards the preliminary objection taken by the respondent's advocate, that the appeal does not lie as the order of remand was not made under Order 41, Rule 23, I am of opinion that it is well-founded and must prevail. Under the present Code an order of remand may be passed either under Order 41, Rule 23, or under the inherent powers of the Court recognized and provided for in Section 151, Civil P.C. That a Court of appeal may remand a case for retrial even in cases not provided for by Rule 23, Order 41, is, I think, a proposition which is well-established by the decisions of the several High Courts. Even under the Civil Procedure Code of 1882, which was repealed by the present Code such an inherent power was recognized notwithstanding that Section 584 of that Code expressly prohibited the appellate Court from remanding a case except as provided by Section 562 which corresponds to Rule 23, Order 41. There is no provision in the present Code corresponding to Section 564 and, therefore, it is all the more clear that under the present Code an appellate Court has an inherent power to remand a case for retrial by the lower Court on grounds which are not covered by Order 41, Rule 23. But so far as the right to appeal against such an order is concerned, Order 43, Rule 1 Clause (u) provides for an appeal only against an order passed under Rule 23, Order 41. It is only when the order of remand falls under Order 41, Rule 23 that the party who is aggrieved by it is precluded from questioning its legality or correctness if he does not appeal against it: see Section 105 (2). There is. no similar provision with regard to orders of remand passed under the inherent powers of the Court.
11. The question whether an appeal lies will therefore depend upon whether the order of remand is one passed under Order 41, Rule 23, or independently of it. Having regard to the interpretation of the expression preliminary point ' in that rule in the Full Bench case Rama Nair v. Krishna Nambudripad A.I.R. 1922 Mad. 505, the decision of the question whether in the particular case the suit has been disposed of on a preliminary point is by no means free from difficulty. If the appellate Court adopts that view and purports to. remand the case under Order 41, Rule 23, I am of opinion that it should be held that an appeal would lie even though the appellate Court may have erred in holding that the suit was disposed of upon a preliminary point. If the aggrieved party does not appeal against such an order he runs the risk of being unable to question its legality or correctness: see Section 105, Sub-section (2), Civil P.C. But if the order itself does not purport to be made under Order 41, Rule 23, an appeal against the order can be entertained only if the Court hearing the appeal comes to the conclusion that the suit was decided upon a preliminary point. It seems to me to be desirable that the Court of appeal when it remands a suit to the trial Court for fresh disposal should make it quite clear whether the order of remand is made under Order 41, Rule 23, or independently of that provision.' In the present case, the judgment of the appellate Court is silent on the point whether in its view the trial Court disposed of the suit on a preliminary point. On that question I agree with my learned brother that the suit was not disposed of on a preliminary point by the trial Court and hence the order of remand cannot be treated as one made under Order 41, Rule 23.. The preliminary objection that no appeal lies against the order must therefore be allowed.
12. The next question is whether we cam treat the appeal memorandum as a revision petition under Section 115 of the Code-Some precedents were cited to us in which such a procedure has been adopted. If the error committed by the lower Court is one of the nature specified in Section 115 and the ends of justice require our interference there can be no objection to our treating the appeal memorandum as a civil revision petition. In this case the order remanding the suit for disposal on the points raised by the District Judge after taking fresh evidence is clearly unsustainable as it entirely ignores the footing on which both the parties proceed to trial in the lower Court and the admission made by them before that Court, and particularly the express statement made at the commencement of the trial that neither party wanted to adduce any evidence with reference to the actual questions upon which they wanted to have the adjudication of the Court. The error committed by the lower Court is one which clearly falls within Clause (c), Section 115.
13. I therefore agree that the order remanding the suit should be set aside and that the case should be disposed of by the lower appellate Court on the materials on record and also to the order for costs proposed by my learned brother.