1. This appeal is directed against the order of remand passed by the Additional District Judge of Midnapur on the 5th June 1925. The defendants are the appellants before us, The plaintiffs instituted this suit out of which the appeal arises for enforcement of a mortgage. The mortgage bond in question is alleged to have been executed by one Dhanada Debya. The learned Munsiff found that there was no legal necessity for the loan, that there was no proof of proper attestation of the bond and that the suit was instituted nearly 12 years after the due date of payment and that the payments alleged to have been made were not proved, and upon these findings the learned Munsiff dismissed the plaintiffs' suit. The plaintiffs thereupon preferred an appeal which was heard by the Additional District Judge. He held in the first instance that the legal necessity for the loan had been proved and there was satisfactory evidence that the mortgagee made the advance after honest enquiry. On the question of attestation the learned Judge held that that was spoken to by two witnesses, namely the scribe and an attesting witness named Adhar Roy. He found that Adhar Roy in his examination-in-chief, gave evidence which would go to show that the bond was duly attested but in cross-examination made certain statements detracting from what he had deposed to in his examination-in-chief. The learned Judge felt doubt as to the truth of the evidence that was given by this witness in his cross-examination and he was of opinion that the witness had been gained over. He, therefore, thought that the plaintiffs might have been under a bona fide mistake in not putting forward other witnesses to the bond who may have been alive, and he, therefore, made the order granting the plaintiffs a further opportunity of calling such other witnesses to the bond as may be alive and who may be able to give evidence about its attestation. As regards the payments the learned Judge was of opinion that they had been proved and he disagreed with the opinion expressed by the learned Munsiff that in case of the proper attestation of the bond not being proved the plaintiffs would not be entitled even to a decree for money. The learned Judge, however, after proceeding to record the order granting the plaintiffs an opportunity to call other attesting witnesses, proceeded to give certain directions in these words:
The result is that the appeal be allowed and the lower Court's judgment and decree be set aside and the suit be sent back on remand to the Court below to allow the plaintiffs to examine the attesting witnesses to the bond that may be still alive, and if there be satisfactory evidence of due attestation of the mortgage bond in suit to pass a decree on it as prayed for in plaintiffs' favour. If, however, no other attesting witness be alive, or if in the opinion of the Court the other alive attesting witness be considered hostile then too to pass a decree on the mortgage bond in suit upon the evidence of P. Ws. 1 and 2 already on the record. If, however, the alive witnesses do not appear to be hostile, and if the due attestation of the mortgage bond is not proved satisfactorily then to pass a money decree in plaintiffs' favour against the assets of Dhanada Debya in defendant's hands.
2. It is against this order that the present appeal has been preferred.
3. A preliminary objection has been taken on behalf of the respondents as to the competency of this appeal. It is urged on their behalf that the order from which the appeal has been preferred is not one which comes within the purview of Order 41, Rule 23, Civil P.C. and that, therefore, no appeal lies to this Court from that order. Strictly speaking, the objection taken on behalf of the respondents is well founded, for the order does not in point of fact conform to the previsions of Order 41, Rule 23, which contemplates an order for remand being passed in a case in which the Court of first instance disposed of the suit upon a prdliminary point. The order, however, does not also come under the provisions of Order 41, Rule 25 of the Code. There is a broad distinction between orders which may be passed under these two rules, In the case of an order passed for remand under Order 41, Rule 23 the whole case goes for decrsion to the Court of first instance; whereas in the case of an order for remand passed under Order 41, Rule 25 the case is retained in the file of the Court which passed the order for remand, Anomalous orders of the description such as the order now before us are very often passed by the subordinate Courts, and in a case in which the case is not kept in the file of the Court itself, but the whole case is sent down for proper investigation on remand it is not unreasonable to suppose that the Court means to act under the provisions of Order 41, Rule 23. It is unnecessary, however, to pursue this matter any further, for in my opinion, even if there is no appeal allowable under the law as against the order from which the present appeal has been preferred, we have ample powers under the provisions of Section 115, Civil Procedure Code to interfere with the order, and in my opinion this is pre-eminently a case in which this order should be interfered with even under the provisions of that section although no appeal lies to us against it.
4. As regards the merits it seems to me that the Additional District Judge has given very good reasons for holding that legal necessity has been duly proved. On the question as to whether the payments had been proved or not there is a finding of fact arrived at by the learned Judge upon the evidence in the case with regard to that matter. These findings, therefore, cannot be interfered with by us either on appeal or in the exercise of our powers of revision.
5. As regards the propriety of the order for remand there can be no question. It is clear to my mind that the plaintiffs are entitled to a further opportunity having regard to the peculiar facts of this case, to examine such witnesses as they may be able to produce with regard to the attestation of the bond. The directions given by the learned Judge, however, seem to me to be absolutely wrong. These directions will not have the effect of assisting the Court for whom they are meant, but will only have the effect of fettering the judicial discretion of that Court in the investigation of the facts which it will have to investigats.
6. In view of these circumstances the proper order for us to make is to set aside those directions and to pass an order of remand bringing the order passed by the learned Judge in conformity with the provisions of Order 41, Rule 27 of the Code, and we, therefore, set aside the order passed by the learned Judge and direct that the plaintiffs be given an opportunity of examining such witnesses as they desire to produce in order to prove the attestation of the bond. The evidence given by such witnesses will be recorded by the learned Munsiff and will be certified : to the Court of the. learned Additional) District Judge. The learned Judge will thereafter proceed to rehear the appeal after taking into consideration such further evidence as may be adduced and then proceed to dispose of the appeal in accordance with law.
7. The costs of this appeal will abide the result. We assess the hearing-fee at two gold mohurs,
8. Let the record be sent down without delay.
9. I agree.