V. Khalid, C.J.
1. Before adverting to the questions of law raised before me in this second appeal, it would be useful to briefly refer to the facts of the case.
A suit was filed in the court of Civil Judge, Jammu for possession of 26 Kanals 10 marlas of land comprised in Khasara Nos. 268/ min and 286/min situate in Satwari. One of the plaintiffs died pending suit. He was the husband of the 2nd appellant and father of appellants 3 to 5. The plaintiffs filed the suit on the basis that they were joint tenants of the suit land with the defendant, that they were wrongfully dispossessed from the land pursuant to an order passed by Chief Judicial Magistrate, Jammu, in a proceedings under Section 145 Cr. P. C. and that the same was wrong. During the pendency of the suit, the Jammu and Kashmir Agrarian Reforms Act (hereinafter referred to as the Act) came into force. The defendant filed an application on 23-1-1974 before the City Judge, Jammu, pleading that the suit was not maintainable in that court because of the provisions of the Act. The City Judge, Jammu, by his order dated 26-5-1975 rejected the application. The defendant-respondent moved this court in revision. The revision was dismissed by this court by its order dated 9-10-1979. The records were received back by the trial court on 21-11-1979. Thereafter an ex parte decree was passed against the defendant. The defendant filed an appeal before the District Judge, Jammu, raising a plea that the ex parte decree was a nullity since Beeru Ram, one of the plaintiffs, had died before the decree and that his legal representatives, were not brought on record before the decree was passed. The plaintiffs' case was that an application had been filed for bringing on record the legal representatives of Beeru Ram. The District Judge allowed the appeal and . remanded the case for considering whether an application had been filed. It appears that an application for impleading the legal representatives of the deceased plaintiff was filed in the court of Civil Judge, Jammu when the records of the case had been called to this court in the Revision filed by the defendant and that the application filed by the plaintiffs was annexed with the index. It is further disclosed that the City Judge, Jammu, consigned the application to records. After remand, the City Judge, dismissed the suit holding that it stood abated. The plaintiffs took the matter in appeal. The learned 1st Additional District Judge, Jammu, confirmed the judgment and decree of the trial court; hence the second appeal.
2. Two questions were debated before me :
(1) Since, the cause of action was joint and indivisible the whole suit did not abate and therefore the decision of the court below is wrong. (2) The parties are governed by the remand order. The only question open for consideration was the one directed to be considered in the remand order. In the absence of an appeal against the remand order, the appellants cannot re-agitate the first question even if it is to be conceded for argument's sake, that the remand order proceeded on a (illegible).
3. Before considering the questionsof law raised it is necessary to understand that scope of the remand order around which (illegible) of the case. Before the learned District Judge, it was contended by the appellants that the ex parte decree was bad and was a nullity since it (illegible) of a dead person. The learned District Judge was told by the opposite side that an application to bring on record the legal representatives of Beeru Ram deceased was, in fact, filed, that the application was consigned to records negligently by the court and that the parties should not suffer for the fault of the Court Shri L. K. Sharma, filed an affidavit stating that he had filed an application to bring on record the legal representatives of Beeru Ram on 19-4-1978. After considering these rival contentions on disputed facts, the learned District Judge held that there was no proper discussion by the trial court about this aspect of the case and thus set aside the decree and judgment and remanded the case observing as follows : --
'.....The record shows that no such application has been placed on file nor is there any mention of it in the interim orders passed by the trial court. But in view of the assertion made by Sh. L. K. Sharma Advocate in his affidavit, this matter requires probe. In case such application is traced out, the same is required to be disposed of in accordance with law, otherwise the suit has to abate as a whole.....'
The learned counsel for the respondent before me submits that the short question that the trial Judge could consider, had been clearly set out in the remand order. In other words, the trial Judge was directed only to consider whether an application was filed for bringing on record the legal representatives of the deceased plaintiff and to dispose of that application, if available, in accordance with law. If the answer to the direction is against the plaintiffs, the necessary consequence was the dismissal of the suit as a whole.
4. The trial Judge understood the remand order thus :
'That the scope of inquiry by this court after remand is limited The appellate court has directed this court to only find out whether the application made by the alleged heirs of the deceased plaintiff Biru Ram had been consigned to record without any order on it. If it was found so then this court is expected to pass proper orders on the same. If, however, it is found that no such application has been made and after being made, the same was disposed of by this court then this court would not be justified in re-opening the chapter.'
The Trial Judge finds that an application was in fact made for bringing on record the legal representatives of the deceased Beeru Ram. An order dated 21-4-1979 was passed on that application dismissing it for non-prosecution. The trial Judge also finds that 'the said application was consigned to records' is not correct on facts. On perusal of the file, he finds that no application was made for restoration of that application and that therefore, the order dismissing the application has substantially become 'a closed chapter particularly when no revision or other proceedings had been resorted by the aggrieved party'. The learned Judge therefore, held that as he was bound by the remand order the suit stood abated as a whole. The trial Judge repelled the request of the plaintiffs to set aside the order dismissing the application for substitution suo motu under Section 151 C. P. C and gave convincing reasons declining to use his inherent jurisdiction. The reasons given are: (1) that the plaintiffs were not diligent; (2) that the plaintiffs pressed for an ex parte decree and examined witnesses for that purpose suppressing the fact of the death of one of the plaintiffs. This attempt is characterised by the learned trial Judge to be 'an evil design to obtain an ex parte decree'; (3) that the plaintiffs made an incorrect statement before the District Judge that the application made by them had been consigned to the records when the application had been dismissed for non prosecution even before the ex parte decree was passed; (4) that even the request for exercise of inherent jurisdiction u/s 151 C. P. C. was an oral request not supported by an application giving reasons and (5) that the plaintiffs did not resort to any alternate remedy available to them. The learned trial Judge has neatly discussed the facts of the case and has come to the conclusion that the suit stood abated.
5. In appeal the same questions were raised by the plaintiffs challenging the judgment passed by the trial Judge. The appellate Judge considered the facts and circumstances of the case and came to the conclusion that the judgment of the City Judge was correct and hence dismissed the appeal with costs.
6. The question whether the suit had abated as a whole or not, in the light of the authorities, cited at the bar, need be considered only if it is necessary. I will first examine the correctness of the contention raised before me regarding the remand order and its effects on the case. The remand order had clearly stated that suit would abate as a whole if no application for substitution was traced out. It now transpires that the application for substitution had been dismissed long ago for non-prosecution. The remand order directs the suit to be dismissed if no application for impleading the legal representatives was filed Can the plaintiffs now turn round and request the Court to re-open the question whether the suit had abated wholly or only partly in this second round? This is what the appellants' counsel attempts to do.
7. Section 105(2) C.P.C governs such cases. It reads :
'105.--(i) x x x x x(2) Notwithstanding anything contained in Sub-section (1), where any party aggrieved by an order of remand made after the commencement of this Code from wich an apeal lies does not appeal therefrom he shall thereafter be precluded from disputing its correctness.'
Theorder of remand could have been appealed against under Order 43. In Appeal, it could be set aside, if there are valid grounds. The direction contained in the appellate judgment was that the suit would stand wholly abated if the application for substitution was not traced out. The plaintiffs-appellants, did not file an appeal. They cannot question the remand order now when the matter comes before this Court in the second round. The question whether the suit would abate only in part or wholly, could have been gone into by this court in an appeal filed Under Section 105(1) before this Court against the remand order by the appellants. Not having done so, the remand order should be deemed to conclude this question against the plaintiffs.
8. The appellant's counsel sought to place reliance upon the decision of the Supreme Court reported in AIR 1977 SC 1011. I am afraid that reliance on this decision is misplaced and ratio of the case can be used aginst the plaintiffs and not in their favour. For a better understanding of the principle of law laid down in the case, I will briefly set out the facts.
9. Here the Supreme Court was considering not whether the correctness of remand order could be reviewed or reconsidered by an appellate court when it comes before it at a second round but whether the Supreme Court would be bound by what the appellate Court might have held if the remand order had been the subject matter of an appeal before it in the first round The matter reached the Supreme Court from a suit for accounts between the parties who had two types of dealings and two types of running accounts. The dispute was whether the accounts of the two dealings could be consolidated and the final settlement arrived at or whether they (sic) question before the Supreme Court was summed up as follows in paragraph 13 :
'The surviving question before us is whether it was in order for the trial court to have investigated the accounts in two shops together as if they were transactions between the same two persons or whether the remand order of the High Court at the first round had fettered the trial court's hands in doing justice in this comprehensive way.....'
The Supreme Court upheld the general principle that a remand order was always binding on the party and on the court but laid down the wide powers of the Supreme Court in dealing with even remand orders thus :
'Be that as it may, in an appeal against the High Court's finding, the Supreme Court is not bound by what the High Court might have held in its remand order. It is true that a subordinate court is bound by the direction of the High Court. It is equally true that same High Court, hearing the matter on a second occasion or any other court of co-ordinate authority, hearing the matter cannot discard the earlier holding, but a finding in a remand order cannot bind a higher court when it comes up in appeal before it. This is the correct view of the law, although Shri Phadke controverted it, without reliance on any authority. Nor did Shri S. T. Desai, who asserted this proposition, which we regard as correct, cite any precedent of this court in support. However, it transpires thai in Lonankutty v. Thomman, (1976) 3 SCC 528 : AIR 1976 SC 1645, this propositon has been affirmed. Viewed simplisticaliy, the remand order by the High Court is a finding in an intermediate stage of the same litigation. When it came to the trial court and escalated to the High Court, it remained the same litigation. The appeal before the Supreme Court is from the suit as a whole and, therefore, the entire subject-matter is available for adjudication before us. If, on any other principle of finality statutorily conferred or on account of res judicata attracted by a decision in an allied litigation the matter is concluded, we too are bound in the Supreme Court. Otherwise, the whole lis for the first tune comes to this court and the High Court's finding at an intermediate stage does not prevent examination of the position of law by this court. Intermediate stages of the litigation and orders passed at those stages have Found (sic) aspects of the matter, Chandrachud J., speaking for the court in Lonankutty observed: 'The circumstances that the remanding judgment of the High Court was not appealed against, assuming that an appeal lay therefrom, cannot preclude the appellant from challenging the correctness of the view taken by the High Court in that judgment.' The contention barred before the High Court is still available to be canvassed before this court when it seeks to pronounce finally on the entirety of the suit,'
This position laid down in AIR 1976 SC 1645, was noted with approval by the Supreme Court in the above dicision.
10. I may profitably refer to the decision reported in AIR 1970 SC 997 also. There the Supreme Court was considering the correctness of the view taken by the High Court that a remand order was open to review by it in the second round. It is not necessary to detail the facts of the case. The position of law is laid down in para 4 of the judgment which I read for proper appreciation of the same :
'The High Court, in our opinion erred in holding that the correctness of the remand order was open to review by it. The order in question v/as made under Rule 23 Order 41, Civil Procedure Code. The order was apealable under Order 43 of that Code. As the same was not apealed agaiast, its correctness was no more open to examination in view of Section 105(2) of the Code which lays down that where any party aggrieved by an order oi remand from which an appeal lies does not appeal therefrom he shall thereafter be precluded from disputing its correctness. The High Court has misconceived the scope of its inherent powers. Under the inherent power of courts recognised by Section 151 C. P. C., a court has no power to do that which is prohibited by the code. Inherent jurisdiction of the court must be exercised subject to the rule that if the code does contains pecific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked In other words the court cannot make use of the special provisions of Section 151 of the Code where a party had his remedy provided elsewhere in the code and he neglected to avail himself of the same. Further the power under Section 151 of the code cannot be exercised as an appellate power.'
The position is thus clear that the order of remand in this case is not available now to be reviewed by this court in this second round. In view of the clear finding by the court below that the application for bringing the legal representatives on record, was not prosecuted properly and was dismissed, the direction in the remand order should prevail and in that event the suit should be deemed to have been abated in whole.
11. Since, the position of law is clear on this point, the second appeal has to fail. The question urged before me whether in law the suit could abate wholly or in part, need not detain me in the peculiar facts and circumstances of the case. The Civil second appeal is accordingly dismissed. No order as to costs.