1. The plaintiff-appellant sued to establish his right to, and to recover possession of, the suit land on the ground that it formed part of the 'Shroff-service inam land' of the village, The defendants contended that questions relating to Shroff's service are governed by Madras Act III of 1895 and that Civil Courts have no jurisdiction to try the suit. Accepting their contention, the District Munsif returned the plaint for presentation to the Revenue Court. On appeal, the District Judge, holding that the suit is triable in a Civil Court, set aside the District Munsif's order and remanded the case to the lower Court for disposal. The District Munsif then gave a decree to the plaintiff for possession of the suit lands and past profits. This decree was confirmed by the Subordinate Judge. In second appeal the question as regards the jurisdiction of the Civil Court to try the suit was once again raised and the learned Judge, Wallace, J., after calling for findings from the lower Court, came to the conclusion that the subject-matter of the suit fell within the purview of Act III of 1895. He, therefore, set aside the decree of the appellate Court and restored the original order of the District Munsif returning the plaint for presentation to the Revenue Court. This Letters Patent Appeal has been preferred against the decree passed in the second appeal setting aside the decree of the lower Appellate Court.
2. The main argument of the appellant is that, since respondents (defendants) did not prefer an appeal against the order of remand passed by the District Judge, they are precluded under Section 105, Clause (2) of the C.P.C., from disputing its validity in second appeal. This is met by the reply that the Code does not provide for an appeal against an order of remand of the nature passed by the District Judge in this case; and that the respondents can question the correctness of that order in proceedings in appeal under Section 105, Clause (1) of the Code. To this, the appellant re-joins by saying that, since the 'remand order' does not 'affect the decision of the case', the respondents cannot invoke the aid of such section. The questions arising for decision are: (1) Whether the order of remand passed by the District Judge in this case is appealable, (2) whether the order, if not appealable, is an order affecting the decision of the case within the meaning of a. 103, Clause (1) of the Code.
3. The appellant relies on Order XLIII, Rule 1, Clause (u) in support of his contention that the order of remand passed in this case is appealable. This argument cannot be accepted. Clause (u) of Rule 1 of Order XLIII contemplates an appeal from an order of remand under Rule 23 of Order XLI. Rule 23 enables the Appellate Court to pass an order of remand in an appeal against a decree in a suit which has been disposed of on a preliminary point. In the case before us, the appeal before the District Judge was not against a decree but against an order passed by the District Munsif returning the plaint under r. 10 of Order VII. An appeal is provided against such an order under Order XLIII, Rule 1, Clause (a) and the order passed by the Appellate Court becomes final under Section 104, Clause (2). It follows that it was not open to the respondents to prefer an appeal against the order of remand passed by the District Judge. This conclusion is supported, by the decisions in Firm Bhawani Sahai-Kanshi Ram v. Firm Harbans Singh-Gopal Das 68 Ind. Cas. 304 : 2 L.L.J. 587, Naubat Singh v. Baldeo Singh 9 Ind. Cas. 666 : 33 A. 479 : 8 A.L.J. 12 and Nilkanth Vasudeo Samant v. Balvant Pandurang Samant : AIR1925Bom431 . Section 105, Clause (2) did not, therefore, preclude the respondents from disputing the correctness of the remand order before the learned Judge in second appeal if they. were otherwise entitled to do so.
4. The respondents rely on Section 105, Clause (1) in support of their right to re-open the question as regards the correctness of the remand order before the learned Judge. Section 105, Clause (1) provides that:
No appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in anyorder, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.
5. The section applies to appealable orders Applying that section, the remand order in this case could be objected to in second appeal if the order is one 'affecting the decision of the case.' Cases brought to our notice by the respondents show that the orders referred to in Section 105, Clause (1) refer to any erroneous order which affects the decision of the case on the merits' or otherwise; while those referred to by the appellant show that the erroneous order must be an order affecting the decision of the case on the merits. It is unnecessary to enumerate these cases and discuss them in detail as all of them have been considered in a recent judgment by Wallace and Jackson, JJ., in Athamsa Rowther v. Ganesan : AIR1924Mad890 wherein the question arose as to whether an order setting aside the ex parte final decree in a mortgage suit retaining the ex parte preliminary decree therein is an order affecting the decision of the case within the meaning of Section 105, Clause (1), C.P.C. In the course of their judgment, holding that the propriety of Such an order can be challenged in appeal against the decree finally passed in the suit, the learned Judges, after referring to the cases now brought to our notice, make the following observation: 'It is clear that, when the result of the setting aside of the order has been the hearing of the suit de novo on its merits, no injustice would be done to any one by the decision of the case and the final result is not affected.' Then referring to the merits of the case before them they state that 'so far from, courting a decision on the merits, he (defendant) is trying to burke such a decision altogether. In such circumstances we cannot but hold that an order setting aside the ex parte final decree while retaining the ex parte preliminary decree is an order 'affecting the decision of the case.' ' It seems to us that these observations made with reference to an order setting aside ex parte decrees may well be applied as tests in considering whether a remand order of the nature we are dealing with 'affects- the decision of the case' within the meaning of Section 105, Clause (1), C.P.C. Does the order in question lead to an enquiry and investigation of the case as a result of the enforcement, or does it prevent such an enquiry? In the former case the final decision of the case is not affected merely by reason of the enquiry being held by one Judge rather than another, whereas in the latter the result is different. In arriving at a decision as to whether an interlocutory order affects the decision of the case within the meaning of Section 105,. Clause (1), C.P.C., the nature of the order in relation to the facts of the particular case has to be considered. This is what can be gleaned from the decisions. Orders setting aside ex parte decrees may not, in very many cases, as held in Chinta-mony Dassi v. Ragoonath Sahoo 22 C. 981 : 11 Ind. Dec. 651, Gulab Kunwar v.Thakur Das 24 A. 464 : A.W.N. (1902) 136, Tasaddnq Husain v. Hayat-un-nissa 25 A. 280 : A.W.N. (1903) 39 and Sundar Singh v. Nighaiya 24 A. 464 : A.W.N. (1902) 136 be attacked in appeals in the suits; but if they are of the nature mentioned in Gopala Chetti v. Subbier : AIR1924Mad890 they will affect the decision of the case and can be challenged in appeal against the final decrees.
6. In the present case the result of the enforcement of the remand order was the trial of the suit and an adjudication of the rights of the parties according to the merits. The eventual decision of the case is not affected by it and its propriety cannot, therefore, be questioned in second appeal under Section 105, Clause (1), C.P.C. We must, therefore, set aside the decision of the learned Judge and restore that of the Subordinate Judge with costs here and before the learned Judge.