Chaturvedi, J.@mdashThis second appeal by the Defendant is directed against an order of remand passed by the first appellate court and arises
out of a suit filed by the Respondents Plaintiffs on the basis of a ''Bahikhata'' account which the Appellant Defendant did not admit to be genuine.
There were six issues framed in this case by the trial court; and, on the ground that the Plaintiff had not been able to prove his dues against the
Defendant, the suit was dismissed by the trial court. An appeal was filed to the District Judge Miorena, and the learned District Judge came to the
conclusion that certain issues were wrongly framed and wrongly decided, that application for interrogatories was wrongly rejected and it should
now be allowed, and, that material evidence in the case had not at all been considered by the trial court. After reframing certain issues and after
issuing necessary directions for the trial court for a proper approach to the case, the learned District Judge remanded the case back for retrial
allowing an opportunity to the parties to adduce fresh evidence if necessary. Against this order of remand, the Defendant has filed this second
appeal.
2. A preliminary objection has been taken on behalf of the Respondents as to the competency of this appeal. It is urged on their behalf by Mr.
Patankar that the order from which this appeal has been preferred is not one which comes within the purview of Order 41 Rule 23 of the CPC 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 provisions of Order 41 Rule 23 which contemplates an order of remand being passed in a case in
which the trial court disposed of a suit upon a preliminary point. Mr. Ramrup Tiwari, learned Counsel for the Appellant on the other hand,
contends that the lower appellate court should have dealt with the appeal on merits and if it was of opinion that further evidence was necessary on
any point, it should have acted under Order 41 Rule 25.
He places reliance on - Kalu Dalpat Patil Vs. Narayan Dagadu Sutar, Mr. Tewari also contends that the District Judge has ordered the stamp on
appeal to be refunded. This u/s 13 of the Indian Court Fees Act could be done only in the case of remand under Order 41 Rule 23. The learned
Counsel, therefore, argues that the remand in this case was intended to be one under Order 41 Rule 23 and the appeal is competent. He also urges
that an order passed by the appellate court in the exercise of its inherent jurisdiction is an appealable order even though it may not come within the
scope of Order 41 Rule 23. A large number of cases have been cited by both the parties in support of their respective contentions.
3. It is well settled now that the power of remand u/s 107, CPC is limited to the case described in Order 41 Rule 23. But nothing in that section
restricts in any manner the application of the principle of inherent power recognised by Section 151 of the Code. The powers of the appellate court
as regards remand are thus not restricted to the case specified in Order 41 Rule 23, but the court, by reason of its inherent jurisdiction, recognised
and prescribed in the Code, may order a remand in cases other than the case specified in Order 41 Rule 23, if it be necessary for the ends of
justice. - ''Ghuznavi v. The Allahabad Bank Ltd.'', 44 Cal 929 (FB).
4. If the Code recognises the power of an appellate court to direct a remand in circumstances other than those specified in Order 41 Rule 23, the
question arises, whether an order passed by the appellate court in the exercise of its inherent jurisdiction is an appealable order?
5. There are two sets of decisions in the reports. In one set, which is the earlier one, it is laid down that though an order passed by the Court of
appeal below might not be in strict accord with the provisions of Order 41, Rule 23 read with Order 32 Rule 1(u), if the order of the appellate
court purported to be an order under Order 41 Rule 23 an appeal would lie from such order. It was added that an order passed by the appellate
court in the exercise of its inherent jurisdiction was an appealable order though it may not come within the scope of Order 41 Rule 23. As an
illustration of this set reference may be made to - ''Agent, Bengal Nagpur Rly. v. Beharilal Dutta'' 52 Cal 783 : 29 Cal WN 614 : Agent, Bengal
Nagpur Ry. Vs. Behari Lal Dutt, ; - Umesh Narain Chowdhury and Others Vs. Secretary of State, ; - Mahammad Ali Fakir Vs. Karam Ali
Taluqdar and Others, ; - ''Mt. Sahebji v. Mohammad Sarwar Khan'' AIR 1928 Lah 116; - ''Gopal Singh v. Mangal Singh'' AIR 1928 Lah 341
and - ''Radha Lal v. Fateh Mohummed'' AIR 1937 Lah 454.
6. In the other series of cases it is laid down that there can be no appeal from an order of remand unless it falls under Order 41 Rule 23, or unless
it can be said to amount to a decree within the meaning of Section 2(2). It was added that an order of remand which does not fall within the
purview of Order 41 Rule 23 cannot be deemed to be one under it simply because the judge purported to act in accordance with its provisions.
The rights conferred are of substance and cannot be enlarged or whittled down by what judges do or purport to do. Where the remand order has
not covered the whole of the subject matter of the suit, an order directing refund of the whole of the court fees paid on appeal is wrong, as this
could be done only in the case of a remand under Order 41 Rule 23. The mere order of the lower appellate court that stamp on appeal be
refunded cannot be taken to be an indication as to the law under which the appellate court below intended to make, the order of remand.
Hence, it has been laid down that even if the judge has ordered refund of stamp on appeal, if the order of remand does not fall I under Order 41
Rule 23 no appeal lies. As an illustration of the latter class reference may be made to - Chaudhary Chandrika Prasad Singh and Others Vs. Mithu
Rai and Others, Ind Cas 722: 6 Pat 380 - ''Halima Khatun v. Abdul Majeed'' AIR 1935 Pat 49 ; - AIR 1940 349 (Nagpur) - Maharaja Bahadur
Sir Pradyat Kumara Tagore Vs. Babu Jyotish Chandra Das Gupta, ; - Baldeo Singh and Others Vs. Niras Singh and Others, ; - ''Jagdish Singh v.
Kateshar Singh'' AIR 1945 Oudh 133; - AIR 1948 220 (Oudh) and - Jahangir Khan Vs. Govt. of United State of Rajasthan and Another,
It will be seen that since 1940, the trend of the decisions has definitely been in favour of the latter view. - ''Sheolal Balmukund v. Jugal Kishore''
ILR (1950) Nag 538, is the leading case on the subject and the latter cases upon which the Respondent relies do little more than follow the ''ratio
decidendi'' of Stone C.J. and Vivian Bose J. (as he then was) in - ''Sheolal Balmukund''s case''. I need hardly emphasize the elementary principle
that no appeal can lie unless the right has been expressly conferred by statute and further that a court cannot override an express provision of law
under colour of its inherent powers. In this view of the matter, I respectfully concur with the view expressed in - ''Sheolal''s case'' and also in other
reported cases after the year 1940.
7. In the case before me the suit was disposed of on merits by the trial court. It was not disposed of on a preliminary ground. The order of remand
of the lower appellate court was under its inherent jurisdiction, and not under Order 41 Rule 23. Hence I hold that it was not appealable.
8. Once it is conceded that the lower appellate Court had inherent jurisdiction to remand the case, this appeal cannot be converted into a revision
unless it is shown that some illegality or material irregularity has occurred in the exercise of inherent jurisdiction within the meaning of Sub-section
(c) of Section 115, CPC No such point has been taken in arguments before me, and I do not think that the present is a fit case in which I should
be inclined to interfere in revision.
9. I, therefore, dismiss the appeal with costs.