Full Judgment
1. A preliminary objection has been taken to the hearing of this appeal on the ground that, having regard to the provisions of Section 104(2) of the Code of Civil Procedure, no appeal lies to this Court. The suit out of which this appeal has arisen was brought in the Court of the Munsif. He was of opinion that it was not cognizable by him and accordingly made an order under Order VII, Rule 10 returning the plaint to be presented to the proper Court. From this order/an appeal was preferred to the District Judge under Order XLIII, Rule (1)(a). The learned Subordinate Judge, to whose Court the appeal was transferred and who heard it, was of opinion that the suit was cognizable by the Munsif, and accordingly set aside the order of the Munsif and remanded the case to his Court for trial on the merits.
2. Section 104(2) provides that no appeal shall lie from any order passed in appeal under that section. The order appealed against is an order passed in appeal under that section because Clause (i) of the section allows an appeal from an order made under rules from which an appeal is expressly allowed by rules and Order XLIII, Rule (1)(a) allows an appeal from an order made under Rule 10 of Order VII. As the lower Appellate Court made an order in an appeal from an order as allowed by Rule 43 no further appeal lies from the order of the Appellate Court.
3. The learned Counsel for the appellants, however, relies on Clause (u) of Rule 1, Order XLIII which allows an appeal from an order under Rule 23, Order XLI remanding a case where an appeal would lie from an order of the Appellate Court. That clause only contemplates appeals from an Order of remand under Clause 23 of Order XLI and only in those cases in which had the Appellate Court made a decree an appeal could have been preferred from such a decree. That is not the case here. Clause (u) of Rule (1) provides for cases which under the former Code of Civil Procedure would have come under Section 562 with this further addition that no appeal would lie from an order of remand in cases in which decree of the Appellate Court would have been final. In other respects the Legislature in enacting the provisions of Section 104(2) does not seem to have altered the provisions of the old law. It seems to us to contemplate only one appeal from an order and not two appeals, as is contended for on behalf of the appellant. In this view this appeal does not lie and must be dismissed.
4. Further, we are of opinion that having regard to the provisions of Section 197 of the Agra Tenancy Act, the appellant is not entitled to take any objection or raise any plea in respect of the order of remand made by the Court below. If the suit had been brought in the Revenue Court, the Court to which an appeal from the decision of that Court could have been preferred was the Court of the District Judge, inasmuch as a question of jurisdiction was raised and decided (see Section 177(f) of the Tenancy Act). As the suit was filed in the Court of the Munsif an appeal from his order lay to the District Judge. Therefore, even if the view adopted in Ram Charan v. Sheoraj 3 A.L.J. 226 is correct (as to which we express no opinion), Section 197 would apply to the present case and no objection can be taken to the order of remand. It was, however, held in the case of Badam Singh v. Musammat Sobta Kuar 2 A.L.J. 119 that the Court of the District Judge being the Court to which an appeal lay from the decision of the Munsif the section applied. In either view, therefore, the appeal is not sustainable. We accordingly dismiss it with costs.