1. This is an appeal from an order of the Additional District Judge of Tipperah remanding a case for rehearing and disposal to the Munsif's Court at Comilla. Under Order 43, Rule 1(u)
an order under Rule 23 of Order 41 reminding a case, where an appeal would lie from the decree of the appellate Court,
is appealable. If is conceded that an order of remand made under the Code is not appealable unless it is within the ambit of Order 41, Rule 23. Order 41, Rule 23 reads as follows:
Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any; recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.
2. At the trial in the course of the proceedings out of which the present appeal arises, the plaintiff sought to recover a sum of Rs. 1,356 in respect of which a bond had been executed by Defendant No. 1 as agent and manager of Defendant No. 2. The suit was heard upon the merits, and after all the issues raised had been determined, the learned Munsif decreed the suit as against Defendant No. 2 and dismissed the suit as against Defendant No. 1. Defendant No. 2 appealed, and at the hearing before the learned District Judge he held, agreeing with the learned trial Judge, that Defendant No. 2 was prima facie liable for the sum that the plaintiff claimed. The learned District Judge having, upon the merits of the case so far as they had been investigated, expressed his opinion that the decision of the learned Munsif was correct proceeded as follows:
The next question is the question of limitation which does not appear to ma to have been sufficiently explored in the lower Court. No issue was drawn under this head, and the learned Judge added:
I think, therefore, that the issue of limitation should be expressly raised, and that definite evidence bearing expressly on that issue should, if possible, be produced. The case is, therefore, sent back for re-hearing and disposal to the learned Munsif on the issue of limitation. Both parties will be at liberty to produce evidence bearing on that issue. The costs of this appeal will be costs in the action.
3. Now, it is the common case, both of the appellant and the respondents, having regard to what took place at the trial and on the appeal, that the conditions set out under Order 41, Rule 23, upon the fulfilment of which alone the appellate Court could remand the case under that rule, had not been fulfilled, for the learned Munsif had not disposed of the suit upon a preliminary point upon the merits, and the decree passed by the learned Mtmsif was not reversed on appeal by the learned District Judge. In those circumstances the learned District Judge had no jurisdiction to make an order of remand under Order 41, Rule 23, and if in fact he had passed the order of remand purporting to act under Rule 23, he was acting illegally, and I should have thought that the order was subject to revision under Section 115 of the Code of Civil Procedure as having been made without jurisdiction. A conclusion of the matter in that sense would be in consonance with the judgment of Walmsley and Shamsul Huda, JJ., in the case of Mohendra Nath Chakravaiti v. Ramtaran Bandopadhya  31 C.L.J. 357. It appears, however, that in Basumati Devi v. Taritbasini Dasi  31 C.L.J. 354, Richardson and Beachcroft, JJ., in respect of the order of remand passed in that case observed:
It may be that regard being had to the terms of Rule 23, this is not a case in which it was, strictly speaking, open to be learned Subordinate Judge to mike an order under that rule. But whether the order was regularly made or irregularly made, it appears to me to be in form and substance an order under that rule. That being so, the order must be treated as an order under Rule 23 from which an appeal lies.
4. This decision was prior to the decision in the case of Mohendra Nath Chakravarti v. Ramtaran Bandopadhya  31 C.L.J. 357 and does not appear to have been brought to the attention of the Court in the latter case. The case of Basumati Devi v. Taritbasini Dasi  C.L.J. 354 has been followed in a series of cases, viz., Parbati Charan Saha v. Secretary of State  35 C.L.J. 445, Bhairab Chandra Dutt v. Kali Kumar Dutt A.I.R. 1923 Cal. 606, Kayem Biswas v. Bahadur Khan : AIR1925Cal1258 . see also the case of Gokul Prasad Har Prasad v. Ram Kumar A.I.R. 1922 All. 254 and Kulsum-un-nissa v. Ram Prasad A.I.R. 1922 All. 226 and the law as it obtains at present appears to be that although the Court ordering the remand may have had no jurisdiction under Rule 23 to pass the order under that rule, nevertheless, if the order of remand as made 'purports to be an order under Order 41, Rule 23,' and 'appears to be in form and substance an order under that rule,' it is to be regarded as an order of remand passed under Rule 23, and, therefore, subject to appeal. For the purposes of this case it is enough to say that Rule 23 makes no reference to orders which the Court has no jurisdiction to make under the rule, but which 'purport to be' made under the rule. But taking the procedure laid down in the case to which I have referred (other than the case decided by Walmsley and Shatnsul Huda, JJ.)., in my opinion the learned District Judge in the present case did not purport to make an order under Order 41, Rule 23, but purported to pass an order under Order 41, Rule 25, within the ambit of which, it is conceded by the appellant, the facts of the present case are to be found. The learned District Judge, purporting to act under Order 25, instead of retaining the appeal in his Court and referring merely an issue to be determined by the trial Court, illegally and without jurisdiction remanded the case to the trial Court for the issue of limitation to he determined and the case disposed of by that Court. The order under appeal in the present case was one which the learned District Judge had no jurisdiction to pass either under Order 41, Rule 23 or under Order 41, Rule 25. But, in order that an appeal should lie from the order of remand in the present suit, it is incumbent upon the appellant to satisfy the Court (taking the law for the present to be that stated in the cases to which I have referred, other than the case decided by 'Walmsley and Huda, JJ.) that the order was passed or 'purported' to have been passed under Order 41, Rule 23. For the reasons which I have stated, in my opinion, the order of remand in the present case neither was passed, nor purported to have been passed, under the provisions of Order 41, Rule 23. The result is that no appeal lies from that order, and the present appeal must be dismissed with costs, the hearing-fee being assessed at two gold mohurs.
5. I agree. The order appealed against in this instance was an anomalous order which, strictly speaking, cannot be brought either under Rule 23 or Rule 25 of Order 41 of the Code of Civil Procedure. It is clear that Rule 23 can have no application, since the suit was not disposed of on a preliminary point, nor was the decree reversed on appeal. But I think that it is equally clear that the order in question could have been appropriately made under Order 41, Rule 25. That rule reads as follows:
Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the appellate Court essential to the right decision of the suit upon the merits, the appellate Court may, if necessary, frame issues, and refer the same for trial to the Court, from whose decree the appeal is preferred, and in such a case shall direct such Court to take the additional evidence required; and suck Court shall proceed to try such issues, and shall, return the evidence to the appellate Court, together with its findings thereon and the reasons therefor.
6. Now, here the issue which the Court had omitted to frame and decide was the issue of limitation, and what the learned Additional District Judge no doubt intended was to deal with the case under this rule. Instead, however, of adopting the procedure laid down in the latter part of this rule he appears to have adopted a procedure laid down under Rule 23 and remanded the case to-the Court below for trial of the issue.
7. In my judgment, on the facts of this particular case the order in question purported to be and was, though irregular in form, in substance one under Rule 25 and that being so, no appeal lies to this Court, and the appeal must be dismissed.