Dave, J.
1. This case comes on reference made by learned Judges of this Court constituting a division bench.
2. The facts giving rise to it are that Shri Banshidhar and Mannalal plaintiffs filed a suit in the court of the Civil Judge, Udaipur, on 9th September, 1948, for dissolution of partnership and rendition of accounts against two defendants, namely, Haridas and Bhanwarlal. The plaintiffs' case was that the defendants were owners of a firm called 'Bhatia-Saree-Stores' and that both of them, together with one Kishanlal Paliwal of Nathdwara, were also trading in tobacco under the name and style of Rajasthan Tambakhu (Tobacco) Manufacturing Company. On 5th January, 1948, both the plaintiffs and the two defendants entered into a partnership business and the name of this firm was kept as Rajasthan Tambakhu Company. The share of each one of the plaintiffs was five annas in a rupee while the share of the defendants was jointly five annas in a rupee. A branch of this firm was also started in the name of Banshidhar Mannalal.
It was alleged by the plaintiffs that the defendants had committed breaches of the various terms of their agreement. The plaintiffs drew up in the plaint almost a catalogue of several breaches on the part of the defendants, but it is not necessary to repeat them here. It would suffice to say that according to the plaintiffs, it was no longer possible for them to continue the partnership and therefore they prayed for its dissolution and rendition of account. The plaintiffs valued their claim at Rs. 3800/-.
3. The defendants admitted the partnership but denied the allegations made against them by the plaintiffs. It was averred by them that the breaches of the terms of agreement were committed by the plaintiffs and not by them.
4. The trial court framed eight issues and, after recording evidence of the parties, came to the conclusion that the plaintiffs were unable to prove if the defendants had committed breach of agreement. On the contrary, it was found that the transactions on behalf of the partnership were conducted by the plaintiffs and the losses were suffered on account of their conduct. The court passed a preliminary decree on 26th October, 1951, whereby it was declared that the plaintiffs had 2/3rd (1/3rd share each) and the defendants had jointly one-third share in the partnership and that the partnership stood dissolved with effect from 17th August, 1948. The court also ordered the appointment of a receiver and directed him to take charge of the partnership estate and effects, to get in all the outstanding book debts and claims of the partnership and to take accounts of the partnership business.
5. Neither party filed any appeal against the preliminary decree.
6. In pursuance of the said decree, the receiver Shri Roshanlal Champavat submitted his report. The court heard the objections of the parties about that report and then came to the conclusion that there was a total loss of Rs. 6552/ 14/6 in the partnership business and thus each partner was to bear the loss of Rs. 2184/4/9. After taking into account the amounts which could be credited to the partners, it came to the conclusion that the defendants were entitled to get Rupees 1086/3/6 deposited in the court and that plaintiff Banshidhar was liable to pay Rs. 1078/2/10 to the defendants and Mannalal was liable to pay Rs. 2471/1/4 to the defendants. The final decree was accordingly passed against the plaintiffs on 17th April, 1957.
7. Mannalal plaintiff did not file any appeal against the said decree.
8. Plaintiff Banshidhar alone filed an appeal valued at Rs. 1078/2/10 in the court of the District Judge, Udaipur.
9. It was urged on behalf of the appellant that he had brought a money suit also against the defendants Haridas and Bhanwarlal for the recovery of Rs. 3200/- and in that suit the defendants had raised a plea that the money advanced by the plaintiff was not given as a loan, but that it was given to them in consideration of the value of their one-half share in the stock of the Rajasthan Tambakhu Manufacturing Company, Nathdwara. It was pointed, out that the defendants had taken the same plea in the present case and the trial court had committed a mistake in allowing the same. It was contended that the decision on this point in the money suit debarred the courts from deciding the same question again on the ground of res judicata.
This objection was allowed by the appellate court and it was held that the former decision against Haridas and Bhanwarlal in the suit brought by Banshidhar that they did not sell nor deliver their share in the Rajasthan Tambakhu Manufacturing Company to Banshidhar was res judicata in the present suit. The District Judge allowed the appeal set aside the final decree and sent the case back to the Civil Judge for a fresh decision according to law. He also ordered that the court-fee should be refunded to the appellant as the appeal was allowed on a preliminary point. The present appeal is directed against this order of remand dated 3rd February, 1959.
10. This appeal came for hearing before a learned Single Judge of this Court on 2nd January, 1961. Learned counsel for the plaintiff-respondent raised two preliminary objections. It was contended in the first instance that the order of remand passed by the District Judge was not covered by the provisions of Order 41, Rule 23 and therefore an appeal did not lie. It was next contended that after the order of remand, the trial court had passed another final decree on 30th May, 1959, and since no appeal was filed against that decree, the appeal against the order of remand was no longer maintainable. In reply, it was pointed out by learned counsel for the appellant that there was no substance in the first objection in view of the decision of this Court in Ratan Raj v. Kripashankar, ILR (1955) 5 Raj 895 : ((S) AIR, 1955 Raj 193) and about the second objection he relied upon certain decisions of other High Courts in his favour.
Learned counsel for the respondent relied upon East and West Steamship Co. George-town, Madras v. Ramalingam Chettiar, AIR 1960 SC 1058 in support of his second contention. The learned Judge thought that the questions of law involved were important and fit to be thrashed out before a larger Bench. He, therefore, directed the case to be put up before the Hon'ble Chief Justice to be referred to a larger Bench.
11. The appeal was then referred to a Division Bench of this Court and when it came for hearing on 26th July, 1961, the learned Judges thought that the case was fit to be referred to a still larger Bench. The learned Judges were of the view that there was some inconsistency between the two Division Bench decisions of this Court made in Laxman Singh v. Raj Jugar Singh, ILR (1953) 3 Raj 525 and ILR (1955) 5 Raj 895 : ((S) AIR 1955 Raj 193). Reference has also been made to Madholal v. Bridhichand, AIR 1951 Raj 58 and Punja v. Ramlal, ILR (1955) 5 Raj 143 : (AIR 1956 Raj 43) to be considered in this connection.
12. It is apparent from the above narration that before we proceed to consider the appeal on merits, the two preliminary objections which we are called upon to determine, may be formulated as follows:
1. Whether in a case where an appellate court expressly passes an order of remand under Order 41, Rule 23, Civil Procedure Code, or where it purports to pass an order of remand under the said rule by directing the court-fees to be returned to the appellant, will an appeal lie against the said order of remand under Order 43, Rule 1(u), Civil Procedure Code, even though the order of remand is not strictly covered by the provisions of Order 41, Rule 23, Civil Procedure Code.
2. If an appeal under Order 43, Rule 1(u) is brought within the period of limitation, will it not be maintainable, if a final decree has been given meanwhile and no appeal is filed against it.
It would be proper to take up the second point first, because if that objection prevails, it may be strictly necessary to decide, even the first point.
13. It is common ground between the parties that the remand order was made by the first appellate court on 3rd February, 1959, and that the trial court thereafter passed its final decree (for the second time) on 30th May, 1959, while the present appeal was filed on 6th July, 1959. It is not contested by learned counsel for the respondent that this appeal was filed within limitation after excluding the period which was available to the appellant under the law for obtaining copies of the order etc., but it was urged that the appellant had not filed any appeal from the final decree dated 30th May, 1959, and therefore he had forfeited his right to present appeal against the remand order. It has been argued that even if it be assumed that the remand order is set aside, the final decree would continue to stand not having been reversed in appeal, and this would give rise to an anomalous situation.
14. We have given due consideration to this argument and we are of opinion that it is not tenable in view of the reasoning which follows immediately. It may be pointed out that a remand order under Order 41, Rule 23, Civil Procedure Code, can be passed only where the court, from whose decree an appeal is preferred, has disposed of the suit upon a preliminary point and the decree is reversed by the appellate court. An appeal against such an order of remand is specifically provided by Order 43, Rule 1(u). Section 105 Sub-section (2), Civil Procedure Code further provides that if any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.
It would thus appear that the provision of Section 105(2) is analogous to Section 97, Civil Procedure Code, which provides that where any party aggrieved by a preliminary decree does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. We might make it clear at this stage that the. provisions of Section 97 have no application to the present case, but we have referred to it because the position of an appeal from an order of remand and an appeal from a preliminary decree is very similar inasmuch as if an appeal, which is specifically provided, by law, is not preferred in time, those decisions cannot be challenged later on in an appeal from the final decree.
The question, whether an appeal from a preliminary decree would be incompetent if a final decree is made before the appeal from the preliminary decree is presented, has been considered by many High Courts of different States in India and the reasons given in those cases would be helpful in determining the question which arises in the present case. Two situations may arise in the case of appeal from an order of remand just as they arise in the case of a preliminary decree. The first situation would be where an appeal is preferred against the preliminary decree or the order of remand before the passing of the final decree and, in that case, the question would arise whether the passing of the final decree affects the maintainability of the appeal (already filed) from the order of remand or the preliminary decree. The second situation would arise where an appeal against a preliminary decree or an order of remand is preferred after the final decree has been passed in the suit.
Now, in the case of an appeal from a preliminary decree in the first situation most of the High Courts have held that the passing of a final decree subsequent to the institution of the appeal would not affect the maintainability of the appeal. Reference in this connection may be made to Kanhaiyalal v. Tribeni Sahai, AIR 1914 All 880, Ramien v. Veerappudian, AIR 1914 Mad 473(2), Gokul Kalwar v. Chandar Sekhar, AIR 1926 All 665, Madhu Sudan v. Chhalimaddin Ahammad, AIR 1928 Cal 167, Gurmukh Singh v. Shiv Ram, AIR 1935 Lah 482, Basawant Mallappa v. Kallappa Virbhadrappa, AIR 1938 Bom 222, Madhorao Paikaji v. Ekanathrao Balappa, AIR 1948 Nag 59 and Uppala Subbaiah v. Chitrala Narsimloo, AIR 1956 Hyd 161. The reasoning adopted in all these cases was that a preliminary decree had an independent existence and it could not be attacked upon in an appeal from the final decree. The final decree was dependent upon the preliminary decree and if the preliminary decree was set aside, the final decree would also fall to the ground.
Even in the second situation, i.e., where an appeal against the preliminary decree was filed after the passing of the final decree it was held in Ramien's case, AIR 1914 Mad 473(2) that the right of a party to appeal against a preliminary decree was not affected by the subsequent passing of the final decree. The same view was followed in Lakshmi v. Marudevi, AIR 1915 Mad 197 and Wajihunnissa v. Bankebehari Singh, AIR 1930 Pat 177. In Gurmukh Singh's case, AIR 1935 Lah 482 it was held that
'the preliminary decree has an independent existence and as the person aggrieved by it is bound to appeal from it, that right cannot be taken away by a final decree being passed either before or after the presentation of an appeal from the preliminary decree'.
15. Learned counsel for the respondent has referred to Nanibala Dasi v. Ichhamoyee Dasi, AIR 1925 Cal 218 in which it was held that an appeal against a preliminary decree filed on a date subsequent to the date of the final decree was barred, but in that case the appeal from the preliminary decree was allowed to be converted into an appeal from final decree. Moreover, that decision cannot be taken to be correct in view of the later Full Bench decision of that Court in Taleb Ali v. Abdul Aziz, AIR 1929 Cal 689 (FB). In that case, the question which was referred to the Full Bench was whether an appeal from a preliminary decree was incompetent if a final decree was made before the appeal was presented. That question was answered in the negative.
It was observed by learned Rankin C. J. that it was altogether unreasonable to treat a preliminary decree as a mere interlocutory order whose force was spent when the suit Was disposed of. He further proceeded to observe that
'In my judgment the final decree is, in its nature, dependent and subordinate because it is a decree which has been passed as a result of proceedings directed and controlled by the preliminary decree and based thereon ...... When a preliminary decree is set aside the final decree is superseded whether the appeal was brought before or after the passing of the final decree and that in my judgment an appellate court when setting aside or varying a preliminary decree can, and indeed should, give direction for the setting aside or varying of the final decree if the existence of the final decree is brought to its notice as in all cases it ought to be'.
16. It may be observed that the remarks made by learned Rankin C. J. can as well be applied to an order of remand made under Order 41, Rule 23. It has already been pointed out above that this order is appealable under Order 43, Rule 1(u) and if no appeal is filed therefrom, it cannot be challenged even under Section 105, Civil Procedure Code, when an appeal from the final decree is made. Thus, the said order of remand has an independent existence and if any person is aggrieved thereby, he has no other alternative but to appeal from it, because if he does not appeal, he will not be heard later on.
17. Secondly, the law gives to the person aggrieved by the said order of remand a right to appeal and that right cannot be taken away simply because the final decree is passed either before or after the person files an appeal from the said order. So long as his appeal against the order of remand is within the period of limitation, he has a right to be heard and the courts are also bound to decide that appeal. Such, an appeal cannot be dismissed on the mere ground that another appeal is not filed from the final decree which has been passed either before or after the appeal filed against the preliminary decree.
18. Thirdly, the final decree which is passed by the lower court after the order of remand is in its nature dependent and subordinate to the order of remand, because it is passed as a result of the proceedings directed or controlled by the remand order. If the remand order is set aside, the final decree would also topple down.
19. Learned counsel for the respondent has further referred to Madhu Sudan Sen v. Kamini Kanta Sen, ILR 32 Cal 1023 to support his argument to the contrary. In that case, the suit was remanded on the plaintiff's appeal under Section 562 of the Civil Procedure Code as it existed at that time and, on remand, the court of first instance decided the case in the plaintiff's favour. There was no appeal from that decision, but the defendant appealed to the High Court against the order of remand. It was held that the right of appeal from interlocutory orders ceased with the disposal of the suit, and that the proper remedy for the person aggrieved from the order of remand was to file an appeal from the final decision and on that appeal he could take exception to the validity of the order of remand.
It appears that an earlier case of Jatinga Valley Tea Co. Ltd., v. Chera Tea Co. Ltd., ILR 12 Cal 45 was cited before the learned Judges. In that case also it was contended that the existence of the final decree was a bar to the hearing of an appeal from the order of remand under Section 562, Civil Procedure Code. It was, however, observed by Field J. that
'the Code does not say that there shall be an appeal only if the case has not been finally determined in the Court of first instance, before that appeal is preferred or comes on for hearing'.
With these observations the Court not only set aside the order of remand but also set aside the decree which was based upon it. The learned Judges in Madhu Sudan Sen's case, ILR 32 Cal 1023 distinguished Jatinga Valley Tea Company's case, ILR 12 Cal 45 by saying that the appeal from the order of remand was presented before the suit had been dismissed after remand.
This case no doubt supports the argument raised by learned counsel for the respondent, but with great respect, we think that it does not lay down the correct law. It would suffice to say that this view was considered by the learned Judges of file same High Court in Taleb Ali's case, AIR 1929 Cal 689 and it was not approved.
20. Learned counsel has next referred to S. Venkatrama Aiyar v. Unamalai Animal, AIR 1949 Mad 377. In that case, it was held that
'an appeal against an order of remand cannot be filed after the date of the final decree consequent on remand, where the appellant has not signified his protest against the order of remand before the suit on its basis is tried and taken to a decision. The fact that the appellant has simultaneously with the appeal against the order of remand also filed an appeal against the judgment after remand itself, makes no difference. It may be pointed out that this view was strongly criticised by another learned Judge of the same High Court in Kanakayya v. K. Lakshmayya, AIR 1951 Mad 218. It Was observed that
'The Civil P. C. of 1908 not only gives an aggrieved party a right of appeal against a preliminary decree or an order of remand in a case where the decree of the appellate Court would have been open to appeal but also imposes this serious disability on a litigant that if he does not prefer an appeal against the preliminary decree or an order of remand, he is thereafter precluded from disputing its correctness in an appeal from the final decree.
There is no provision anywhere in the Code that takes away the right of a party to appeal from a preliminary decree or an order of remand, if a final decree happens to be passed in the suit before the appeal against the preliminary decree or the order of remand is presented. Nor is there any provision in the Code that an appeal against a preliminary decree or an order of remand properly presented becomes defunct by the passing of a final decree pending the appeal... Order 43, Rule 1(u) does not say that an order of remand shall be appealable only if the case had not been finally determined by the trial Court before the date of the filing of the appeal. Nor does it say that an appeal filed against an order of remand becomes infructuous if a final decree happens to be passed during its pendency.
It is not permissible for a Court to import into the provisions of Order 43, Rule 1, Clause (u) a limitation which is not there found either in express terms or by necessary implication. It is all the more objectionable to import such a limitation in the face of the stringent provision in Section 105, Clause (2), Civil P.C., which precludes a party from questioning the propriety of an order of remand except on an appeal preferred against that order.'
It would appear that these observations are in conformity with the view we have taken above.
21. Learned counsel for the respondent has referred to Satyadhyan Ghosal v. Deorajin Debi, AIR 1960 SC 941. In that case it was observed as follows:--
'It is clear therefore that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal, was not taken could be challenged in an appeal from the final decree or order. A special provision was made as regards orders of remand and that was to the effect that if an appeal lay and still the appeal was not taken the correctness of the order of remand could not later be challenged in an appeal from the final decision. If, however, an appeal did not lie from the order of remand the correctness thereof could be challenged by an appeal from the final decree as in the cases of other interlocutory orders. The second sub-section did not apply to the Privy Council and can have no application to appeals to the Supreme Court, one reason being that no appeal lay to the Privy Council or lies to the Supreme Court against an order of remand'.
It is obvious that these observations are of no help to the respondent, because so far as this Court is concerned, Section 105, Sub-section (2), Civil Procedure Code, is certainly applicable and an order of remand made under Order 41, Rule 23 cannot be challenged thereunder and thus the only remedy for the aggrieved person is to file an appeal under Order 43, Rule 1(u).
22. Learned counsel for the respondent has next referred to East and West Steamship Company's case, AIR 1960 SC 1058 and has relied upon the following observation appearing therein:--
'After remand the trial court on 4-5-1954, decreed the suit for a sum of Rs. 974-13-0. Against that decree no steps were taken by the Shipping Company. It was after that date that the Shipping Company applied for and obtained from this Court special leave to appeal on 11-10-1954. It has to be noticed that as the decree made in the suit has become final and unassailable, this appeal is really of academic interest. In view however of the fact that the main question of law raised, viz., as regards the scope and interpretation of the 3rd Clause of paragraph 6 of Article III of the Schedule to the Act is being raised before us in other two appeals from the Bombay High Court also we have heard the counsel for both sides in this appeal in full'.
It is contended by learned counsel that after the remand of the case by the High Court of Madras and before the application for leave to appeal to the Supreme Court a final decree was passed by the trial court and, under these circumstances, it was held that the decree made after remand had become final and unassailable. It is pointed out that the appeal against the order of remand was dismissed on this ground and thus his argument finds strong support from this case. We have very carefully gone through this judgment and if the learned Judges had laid down the law as it is sought to be interpreted by learned counsel for the respondent, we would have certainly been bound to follow it, but a careful perusal of this judgment shows that the case is not very helpful to the respondent.
In that case, AIR 1960 SC 1058, there were three appeals before their Lordships--two from the High Court of Bombay and one from the High Court of Madras. The appeal from the Madras High Court was in respect of a consignment of 90 bundles of brass circles which were consigned to the respondent Shri Chettiar at Madras from Bombay by a steamer belonging to the appellant, i.e., East and West Steamship Company. The ship arrived in Madras on 1-8-48 and 83 bundles were delivered on different dates. After some correspondence between the Shipping Company and the respondent regarding the remaining bundles which were not delivered, the Company repudiated the respondent's claim finally on 24-3-50. The first respondent brought a suit on 27-6-50 for compensation and value of the undelivered goods and the profit of which he was deprived.
The Company's defence was that the suit was filed beyond the period prescribed in Clause 6 of Article III of the Carriage of Goods by Sea Act (hereinafter called the Act). It was also urged that the suit was barred as no claim was made within the period of one month from the date of the arrival of the vessel as stipulated in the bill of lading and also because file goods were insufficiently packed and therefore the carrier was not liable for the alleged loss. The Judge Small Causes Court, who tried the suit and also the Judge, who heard the matter on a new trial application held that the plaintiffs light to claim the compensation was extinguished before the date of the suit. The case went up in revision before the High Court of Madras. It was held that the term in the bill of lading as regards one month's notice was repugnant to Rule 8 to Article III of the Schedule to the Act and was void.
It was further held that the date of the final repudiation of liability by the Shipping Company as regards the short delivery or non-delivery was the date when the goods should have been delivered within the meaning of the 3rd Clause of the 6th paragraph of Article III and so whether this clause provided for extinction of a right or only prescribed a rule of limitation the defence based on this clause of the Act could not succeed. At the same time, the learned Judge expressed an opinion that the clause did not provide for extinction of the right but merely prescribed a rule of limitation He therefore set aside the decision of the lower court and remanded the suit for further disposal. After remand, the trial court decreed the suit on 4, 5, 1954 for a sum of Rs. 974-13-0. Against that decree no steps were taken by the Shipping Company. Thereafter the Shipping Company applied for and obtained special leave to appeal on 11-10-54 from the Supreme Court. It was in these circumstances that the observation on which reliance is placed by learned counsel for the respondent was made. It may be pointed out that the common question in all the three appeals before their Lordships was whether Clause 3 of paragraph 6 of Article III of the Schedule to the Act provided for extinction of right to compensation or whether it was merely a rule of limitation. The learned Judge of the Madras High Court had expressed an opinion that the said clause merely prescribed a rule of limitation and did not provide for extinction of the right to compensation.
Their Lordships were pleased to hold that the said clause provided for the extinction of the right to compensation and it was not merely a rule of limitation. It is obvious that the appellant Company could not get the decree of the trial court set aside simply because of the decision on this point of law in its favour. It was necessary for the company to challenge the final decree passed after the remand order, since it was further necessary to decide whether the suit was brought within one year after the delivery of the goods or the date when the goods should have been delivered. Their Lordships have not given this reason, but it appears to us that this may have been the reason in the minds of their Lordships.
At any rate, it is clear from the judgment of their Lordships that the question whether the final decree of the trial court after remand could be set aside does not seem to have been stressed even by the appellant, either because of the said reason or because the amount of the decree was very small. Since, this contention was not raised before their Lordships it was observed that the decree made in the suit had become final and unassailable and the appeal was really of academic interest. The question whether an appeal from an order of remand under Order 41, Rule 23 would not lie, if a final decree is made by the trial court thereafter and no appeal is brought against it, did not come for discussion before their Lordships and therefore it would not be proper to treat the remarks, which have been made by their Lordships in passing, as a pronouncement on that point.
It may be pointed out that in Shiromani Gurdwara Prabandhak Committee, Amritsar v. Shiv Rattan Dev Singh, (S) AIR 1955 SC 576 the above question was considered by a larger bench of the Supreme Court. In that case, it was specifically urged before their Lordships that since a decree had already followed the order of remand by the High Court in favour of the plaintiff and since no appeal had been filed against that decree, that determination had become conclusive and prevented their Lordships from dealing with the appeal and setting aside or modifying the judgment of the High Court and making a fresh remand to that court. Adverting to this argument, their Lordships observed that they were unable to accept that contention.
It was observed by their Lordships as follows:
'The application to the High Court for leave to appeal was filed on 23-9-1950 and leave was granted on 18-7-52. The decree of the trial court after remand was passed, in between, on 4-12-1951 The decree must, in the circumstances, be taken to be subject to the result of this appeal. In our opinion this case fails within the principle recognized by the Privy Council in Shama Purshad Roy v. Hurro Purshad Roy, 10 Moo Ind App. 203 (PC), and not that in Naganna Naidu v. Venkatapayya, AIR 1923 PC 167.'
It may be observed that the present case is also governed by the principle recognised by their Lordships of the Privy Council in 10 Moo Ind App 203 (PC) because the final decree was not passed by the trial court in another case based on a different cause of action but in the same suit.
It would be pertinent to reproduce here the observations of their Lordships of the Privy Council in AIR 1923 PC 167 in which the principle laid down in Shama Purshad's case, 10 Moo Ind App 203 (PC) referred to above, was further explained. Their Lordships observed :
'The facts in the case of Shama Purshad 10 Moo Ind App 203 (PC), were, in their Lordships' opinion, entirely different. In that case the Judicial Committee, in applying the test already quoted, viz., 'whether the decree or judgment under, which the money was originally recovered had been reversed or superseded', were of opinion that it was plainly intended by the Order in Council in that case that all the rights and liabilities of the parties should be dealt with under it, and that it would be in contravention of the order to permit the decrees obtained pending the appeal on which it was made to interfere with this purpose.
It was also pointed out that the plaint in which the original decree was recovered, described the interest recovered by the decrees under appeal as part of the same cause of suit, holding, therefore, that such decrees were mere subordinate and dependent decrees, which could no longer be held to have remained in force when the decree on which they were dependent had been reversed'.
23. Now, in the present case, the final decree made by the trial court after the order of remand was a mere subordinate and dependent decree and it could not and it cannot remain in force if the order on which it is dependent is reversed. There is thus no force in the second preliminary objection raised by learned counsel for the respondent and it is fit to be dismissed.
24. We may now advert to the first preliminary objection which has already been set out above. It is urged by learned counsel for the respondent that the trial court had decided the case on all the issues, and not on a preliminary point and therefore the order of remand made by the first appellate court was not covered by the provisions of Order 41, Rule 23 and hence the present appeal was incompetent. In reply, it is urged by appellant's learned counsel that in the penultimate paragraph of his judgment dated 3rd February, 1959, the learned District Judge has expressly stated that since the appeal had been remanded on a preliminary point, a certificate may be granted for the refund of court-fees.
It is pointed out that a certificate for the refund of court-fees can be granted under Section 13 of the Court-fees Act only if an order of remand is made under Order 41, Rule 23, Civil Procedure Code and not in any other case of remand. It is, therefore, clear that the first appellate court purported to remand the case under Order 41, Rule 23 and the appellant had got a right of appeal against that order. He has placed his reliance on ILR (1955) 5 Raj 895: ((S) AIR 1955 Raj 193). Learned counsel for the respondent has challenged the correctness of the view expressed in the above case.
25. Now, in Ratan Raj's case ILR (1955) 5 Raj 895: ((S) AIR 1955 Raj 193) the following two questions were referred by a learned Single Judge of this Court:--
'(i) Whether an order of remand made by an appellate court would be covered by Order XLI, Rule 23 of the Civil Procedure Code even though the decision of the trial court on the preliminary point on which the suit is decided is not reversed?
2. Whether an appeal against an order of remand purported to have been made under Order XLI, Rule 23 would lie under Order XLIII, Rule 1, even though the order is not strictly covered by the first provision?'
The first question was answered with the observation that
'an order of remand made by an appellate court would not be covered by Order 41, Rule 23, Civil Procedure Code, unless the decision of the trial court on the preliminary point on which the suit is decided is reversed'.
The second question was answered with the observation that
'where the order of remand states expressly that it is under Order XLI, Rule 23, or where there is an order refunding court-fee before the appeal is filed, an appeal would lie under Order XLIII, Rule 1, and the order of remand must be treated under Order XLI, Rule 23. But if the order of remand does not say in so many words that it is passed under Order XLI, Rule 23, nor is there order for refund of court-fee before the appeal is filed, the High Court would be entitled to go into the question whether the order of remand is proper under Order XLI, Rule 23, and if it is not, no appeal Under Order XLIII, Rule 1 would lie.'
Both the parties have not challenged the correctness of the reply to the first question. It is only about the answer to the second point that learned counsel for the respondent has raised the objection, noted above. His main contention is that an appeal against the order of remand would lie only if the case is decided by the trial court on a preliminary point and if the decree of the trial court is reversed, because the first appellate court does not agree with the decision of the trial court on the preliminary point and it is set aside. It is urged that if the order of remand passed by the first appellate court comes within the four corners of the language of Order 41 Rule 23 then alone an appeal would lie.
According to learned counsel, an appeal under Order 43, Rule 1 against an order of remand would not lie even if the first appellate court while passing an order of remand expressly mentions that it has proceeded under Order 41, Rule 23 or if it passes an order for refund of court-fee. It is also urged on the basis of the judgment of a learned Single Judge of this Court in ILR (1955) 5 Raj 143: (AIR 1956 Raj 43) that the appellate court cannot create a right of appeal against its order by referring to Order 41, Rule 23, if it is in fact not covered by the provisions of that Rule.
26. We have given our earnest consideration to the above argument. It may be observed that there are only two express provisions in the Code of Civil Procedure which authorise an appellate court to pass an order of remand. The first provision is under Order 41, Rule 23 and next under Order 41, Rule 25. It, however, happens very often that an appellate court feels an imperative necessity of' remanding a case under circumstances which are not covered by anyone of the said two Rules. Such orders of remand are either expressly passed under the inherent powers of the court under Section 151 Civil Procedure Code or they are deemed to have been passed under that section even if a reference is not made to that section by the appellate court.
The Code of Civil Procedure does not provide any right of appeal from orders of remand passed under Order 41, Rule 25 or under Section 151. It is only against an order passed under Order 41, Rule 23, Civil Procedure Code, that a specific right of appeal has been provided under Order 43, Rule 1(u). While providing this right of appeal the law has also imposed a limitation under Section 105, Subsection (2) to the effect that if an appeal is not preferred against such an order of remand, the party feeling aggrieved shall be precluded front disputing its correctness at a later stage, if and when an appeal is filed from the decree. Now, it is well settled that ever if the appellate court does not make specific reference to Order 41, Rule 23, while making an order of remand, but if it comes within the ambit of this Rule, an appeal would lie against it and if no appeal is preferred, its correctness cannot be challenged if and when an appeal against the decree is preferred in the higher court.
Similarly, if the order of remand passed by the appellate court is not covered by the provisions of Order 41, Rule 23, and if the appellate court has not referred to that Rule or if it has not made any order about the refund of the court-fee, no appeal would lie against it and its correctness may be challenged under Section 105, Sub-section (1) if that occasion arises. It is also not contested even by learned counsel for the respondent that an order for the refund of court-fee after remand can be made by the appellate court only under Section 13 of the Court-fees Act and under that section the order for the refund of the court-fee can be made only if the order of remand is made under Order 41, Rule 23.
The dispute between the parties thus lies within a narrow compass and the short question for determination is whether the person aggrieved by an order of remand would have a right of appeal if the appellate court has expressly referred to Order 41, Rule 23 while making an order of remand or it had purported to pass an order under the said Rule by making an express order that the court-fee should be refunded to the appellant and if such an order for the refund of court-fee is passed before the aggrieved party has filed an appeal against the order of remand.
27. In Ratan Raj's case, ILR (1955) 5 Raj 895: ((S) AIR 1955 Raj 193) it was held that the party aggrieved by the order of remand would have a right to file an appeal, if the court had expressly referred to Order 41, Rule 23 or it had passed an order for the refund of court-fee before the appeal was filed against the order of remand. This view proceeded on the principle that the right of appeal depends on what the court actually does and not on what it ought to have done. Reliance was placed on an earlier decision of this Court in Mool Raj v. Narasingh Das, ILR (1953) 3 Raj 1038, which in turn followed Muthia Chettiar v. Govinda Doss, AIR 1921 Mad 599 (FB) and Nasir Khan v. Itwari, AIR 1924 All 144. We have given our earnest consideration to the matter and we think that this is a sound principle of law and we see no good reason to depart from it.
In Radha Lal v. Fateh Mohammad, AIR 1937 Lah 454 it Was urged that the Senior Subordinate Judge was wrong in remanding the case under Order 41, Rule 23, Civil Procedure Code and no appeal lay under Order 43, Rule 1(u). This objection was overruled and it was held following Gopal Das v. Ishar Das, AIR 1932 Lah 376 that
'for the purposes of the competency of an appeal the Court has to see what the lower court purported to do and actually did and not what the lower Court should have done. As the learned Senior Subordinate Judge remanded the case under Order 41. Rule 23 Civil P. C.. his order is appealable under Order 43, Rule 1(u), Civil P.C.'
28. It may be added that Order 43, Rule 1(u) simply lays down that an appeal shall lie from an order under Rule 23 of Order 41 remanding a case, where an appeal would lie from the decree of the appellate court. It is not laid down that the order remanding a case must in all cases be covered by the provisions, of Order 41, Rule 23 for an appeal to lie. In other words, if the court expressly passes an order under Order 41, Rule 23 remanding a case, an appeal would lie therefrom. It appears from the referring order that an objection was raised before the learned Judges as to how the respondent could be precluded from urging, at the time when the appeal against an order of remand was heard, that the order of remand could not have been properly or possibly passed under that provision, the decision of the trial court not having proceeded on a preliminary point.
With regard to this objection, it may be observed that the respondent would not be debarred from contending that even though the court has referred to Order 41, Rule 23 or purports to have proceeded under that Rule, it should not have done so, because the decision of the trial court was not based on a preliminary point only but on the decision of all the issues in the suit. It may, however be pointed out that if the respondent raises this contention, he would only be supporting the argument of the appellant to the effect that the order of remand passed by the court on the authority of Order 41, Rule 23 was wrong.--Of course, it would be open to the respondent to convince the court that the order of remand was just and proper, though the reference to Order 41, Rule 23 was wrong. In that case, he will have to request the court to justify the order of remand either under Order 41, Rule 25, if it is applicable, or under the inherent powers of the court under Section 151 Civil Procedure Code.
If the appellate court also thinks that the order of remand was Just and proper in the circumstances, it will have to amend the order and say that the remand order was justified under another provision of law. In that case it will have to allow the appeal though partially and will have to convert the remand order under Order 41, Rule 25 or Section 151, Civil Procedure Code, as the case may be.
29. The very fact that the court passes an order of remand under Order 41, Rule 23 or purports to pass an order thereunder gives a right of appeal to the aggrieved party and that right cannot be taken away from it. It was suggested in the order of reference that in case the appellate court has wrongly referred to Order 41, Rule 23, then it would be open to the aggrieved party to challenge it under Section 105, Civil Procedure Code, when that stage arises. It is true that if a case is not really covered by the provisions of Order 41, Rule 23 and if the court makes a wrong reference to it, the aggrieved party may challenge it under Section 105 on the ground that the order did not come within the ambit of Order 41, Rule 23. This does not. however, mean that his immediate right to challpnege the correctness of that order in an appeal which is specifically provided for the purpose should be taken away.
In most of the cases if. the aggrieved party waits to raise this contention under Section 105, the opposite party would raise an objection that the correctness of the remand order should not be allowed to be disputed, since it was expressly passed under Order 41, Rule 23. It is not unlikely that different considerations may weigh with different) courts at that stage. At any rate, the very fact that the court expressly refers to Order 41, Rule 23 or purports to pass an order of remand thereunder, casts a cloud on the right of the aggrieved party to contest the correctness of the order under Section 105, and if a right of appeal is given to him expressly under Order 43, Rule 1(u), that right cannot be snatched away from him. He has certainly got a right to challenge, the correctness of that order at least to the extent that the application of Order 41, Rule 23 was wrong and therefore it cannot be said that an appeal against it would not lie.
30. Learned counsel for the respondent has referred to Punja's case ILR (1955) 5 Raj 143: (AIR 1956 Raj 43) and Sheolal v. Jugal Kishore, AIR 1940 Nag 349 and he has laid great stress on the following observation, which was made in Sheolal's case, AIR 1940 Nag 349 and relied upon in Punja's case, ILR (1955) 5 Raj 143 : (AIR 1956 Raj 43):--
'It is impossible to hold that an order of remand which does not and cannot fall within the purview of Order 41, Rule 23, must nevertheless be deemed to have been one under it simply because the Judge purported to act in accordance with its provisions. The rights conferred are ones of substance and cannot be enlarged or whittled down by what Judges do or purport to do. These rights go to the very roots of the court's jurisdiction. The Legislature has chosen to say that there shall be no appeal from an order of remand unless the matter falls under particular provisions of the Code. If it does not so fall, then the court has no jurisdiction to act under those provisions and it cannot confer jurisdiction upon itself by purporting to do that which it has no power to do'.
On the basis of this observation it is urged that the appellate court could not by merely referring to Order 41, Rule 23 confer jurisdiction upon this Court to entertain an appeal if the order did not fall within the four corners of the said Rule. It maybe observed that in Punja's case, ILR (1955) 5 Raj 143: (AIR 1956 Raj 43) the trial court had framed 11 issues and after recording evidence decided all of them in the plaintiff's favour, but it dismissed the suit on the ground that it was not maintainable in the form in which it was instituted. The plaintiff went in appeal and the appellate court remanded the case since it thought that the trial court should have allowed the amendment of the plaint. It reversed the decree of the trial court and remanded the case for trial according to law. In that case it was obvious that the trial court had not decided the case on a preliminary point and the remand order was not covered by the provisions of Order 41, Rule 23. The appellate court bad not mentioned Order 41, Rule 23, nor was there anything to show if it purported to act under that Rule. Under these circumstances, the learned Judge correctly held that the appeal was incompetent. In fact, reference to the case of AIR 1940 Nag 349 was not strictly necessary, because there was nothing to show that the first appellate court had purported to act under Order 41, Rule 23. That case was decided in August, 1954, while Ratan Raj's case ILR (1955) 5 Raj 895: ((S) AIR 1955 Raj 193) was decided in July, 1955. In Ratan Raj's case ILR (1955) 5 Raj 895: ((S) AIR 1955 Raj 193) the view expressed in Sheolal's case AIR 1940 Nag 349 was not followed.
We have again considered the view expressed in Sheolal's case AIR 1940 Nag 349 and we find it difficult to follow it. That decision certainly overlooks the principle that the right of appeal depends on what the court actually does and not on what it ought to have done. It may be added that when an appellate court wrongly refers to Order 41, Rule 23, or purports to act thereunder by making an order about the refund of court-fee, it does not do so is order to confer jurisdiction upon itself or on the higher court in order to revise its order in appeal, but it does so on account of its wrong understanding of the correct position of law. Therefore, with great respect, it may be observed that the argument advanced in Sheolal's case, AIR 1940 Nag 349 is, in our opinion, not sound.
31. It is next pointed out in the referring order that there is some inconsistency in the view taken in Ratan Raj's case, ILR (1955) 5 Raj 895 : ((S) AIR 1955 Raj 193) and the decisions of this Court in. Madholal's case AIR 1951 Raj 58 and Laxman Singh's case, ILR (1953) 3 Raj 525.
32. In Madholal's case, AIR 1951 Raj 58 the order of remand was described by the learned Civil Judge as under Order 41, Rule 23 and Section 151, Civil Procedure Code. In those circumstances, it was observed by Sharma J. that the only order of remand which was appealable was under Order 41, Rule 23 and that although the order of remand in that case was described by the Civil Judge as under Order 41, Rule 23 and Section 151, it was in fact an order under Section 151 and was therefore not appealable. The learned Judge treated the appeal as revision and gave relief to the aggrieved party by setting aside the order of remand. We have ourselves observed above that an order of remand under Section 151, Civil Procedure Code, is not appealable.
A contrary view on this point has not been taken in Ratan Raj's case, ILR (1955) 5 Raj 895: ((S) AIR 1955 Raj 193). Similarly, in Ratan Raj's case, ILR (1955) 5 Raj 895:((S) AIR 1955 Raj 193) also in has been held that it was only an order under Order 41, Rule 23, which was appealable. There is thus no real inconsistency in the view taken in Madholal's case, AIR 1951 Raj 58 and Ratan Raj's case ILR (1955) 5 Raj 895: ((S) AIR 1955 Raj 193). When Madholal's case, AIR 1951 Raj 58 was decided the view taken in Swarup Narain v. Gopi Nath, ILR (1958) 3 Raj 483: (AIR 1953 Raj 137) (FB) did not prevail in this Court and therefore the learned Judge when deciding Madholal's case, AIR 1951 Raj 58 converted the appeal into revision. The necessity or considering the question whether an appeal would not lie even though Order 41, Rule 23 is expressly mentioned by the appellate court in its order of remand did not arise.
Similarly, in Laxman Singh's case, ILR (1953) 3 Raj 525 the trial court had decided 12 out of 22 issues framed by it. One of the issues was whether the Government of Rajasthan was a necessary party to the suit. Another issue was whether the order of the Rajmata Sahiba of Sirohi was by a sovereign authority and could not be questioned in a court of law. The trial court decided that the Government of Rajasthan was not a necessary party but it dismissed the suit on the ground that the order of the Rajmata Sahiba could not be questioned in a court of law. It therefore dismissed the suit. When the appeal went to the District Judge, he decided only one issue and held that the Government was a necessary party and so he remanded the suit for getting the plaint amended and proceeding with it according to law.
On an appeal against the remand order, a preliminary objection was raised to the effect that no appeal lay. It was held by a division bench of this Court that although the appellate court had reversed the finding of the trial court on the question whether the Government was a necessary party, the trial court had not disposed of the suit on the basis of its finding on that issue alone and therefore Order 41, Rule 23 did not apply in terms. It was further held that the remand order must be taken to be under the inherent powers of the court under Section 151, Civil Procedure Code. The Court accordingly treated the appeal as revision and decided it as such.
It may be pointed out that there is no inconsistency between Laxman Singh's case, ILR (1953) 3 Raj 525 and Ratan Raj's case, ILR (1955) 5 Raj 895: ((S) AIR 1955. Raj 193) because in the latter case also it has not been held that an appeal against an order of remand would lie even though the order does not come within the ambit of Order 41, Rule 23 and if no express mention is made of this Rule, nor it appears that the Court has purported to act thereunder. In Laxman Singh's case, ILR (1953) 3 Raj 525 the first appellate court had not referred to Order 41, Rule 23 in its remand order, nor had it passed any order for the refund of court-fee. The Court therefore did not consider the question as to whether an appeal would lie where the appellate court has made an express reference to Order 41, Rule 23 or where it has passed an order for the refund of court-fee before filing the appeal.
It may be pointed out that Laxman Singh's case, ILR (1953) 3 Raj 525 was decided earlier than the case of Swarup Narain's case, ILR (1953) 3 Raj 483: (AIR 1953 Raj 137) (FB) and therefore there was no difficulty before the Court in treating 'the appeal as revision.
33. It may be pointed out that the Madras High Court has in exercise of its rule-making powers amended Order 41, Rule 23, Civil Procedure Code so as to empower an appellate court to remand a suit even in a case where the trial court has not disposed of it on a preliminary point and by this amendment it has put an end to the long drawn-out controversy that has been raging about orders of remand, as to whether they were passed under Order 41, Rule 23 or under the inherent powers of the court. The result is that in Madras all orders of remand are now appealable under Order 43, Rule 1 (u) (See Kanakayya's case, AIR 1951 Mad 218). in Andhra Pradesh also the rule has been changed on the above pattern. Suitable changes have also been made by the Allahabad High Court, while the Punjab High Court has added Rule 23A.
No amendment has yet been made by this Court so as to enable an aggrieved party to file an appeal from orders of remand other than those passed under Order 41, Rule 23. No appeal would therefore lie to this Court if an order of remand is not covered by the provisions of Order 41, Rule 23 and if the court passing the order of remand is silent and does not say under what authority it has passed the order of remand. But if the Order of remand is covered by the provisions of Order 41, Rule 23 or if the court expressly mentions that it has proceeded under Order 41, Rule 23, or if it purports to pass under that Rule an order about the refund of court-fee prior to the decision of the appeal, then, in our opinion, an appeal under Order 43, Rule 1 (u) would lie to this Court. The view taken in Ratan Raj's case, ILR (1955) 5 Raj 895: ((S) AIR 1955 Raj 193) was, in our opinion, correct and there is no good reason to change it.
34. Now coming to the merits of the order against which this appeal has been filed, it was observed by the learned District Judge that one of the objections taken by the plaintiff-appellant Banshidhar to the receiver's report presented before the trial court was that the question that Haridas and Bhanwarlal sold the tobacco of their one half share in Rajasthan Tambakhu (Tobacco) Manufacturing Company of Nathdwara was res judicata. It was further observed that Banshidhar had brought a money suit against Haridas and Bhanwarlal for the recovery of Rs. 3200/- and that Haridas and Bhanwarlal had taken up their defence that the money advanced by Banshidhar to them was not a loan but that they had sold him their one-half of the stock in the Rajasthan Tambakhu (Tobacco) Manufacturing Company, Nathdwara, and this money was paid to them for its cost.
It was further pointed out that the decision in that suit to the effect that Haridas and Bhanwarlal did not sell or deliver their share in the Rajasthan Tambakhu (Tobacco) Manufacturing Company to Banshidhar was res judicata in the present case. He, therefore accepted the appeal on this ground alone and set aside the final decree and remanded the case for a fresh decision.
35. It is contended by learned counsel for the appellant that the present suit was brought by Banshidhar on 9th September, 1948, and that his main purpose was to recover the amount which he had given by a cheque of Rs. 4000/-. After the institution of the present suit, he brought another claim for the recovery of Rs. 3200/- on the ground that he had given the amount of the said cheque as a loan to the defendants. The defendants' version no doubt was that the plaintiff had not advanced a loan but he had paid the amount for the cost of the tobacco to the extent of the defendants one-half share in the stock of the Rajasthan Tambakhu (Tobacco) Manufacturing Company, Nathdwara. The plaintiff was, however, able to get a money decree for Rs. 3200/- and under these circumstances the receiver and the trial court had rightly taken into account the cost of the tobacco to the extent of the defendants' one-half share in the stock of the Rajasthan Tambakhu (Tobacco) Manufacturing Company, since that stock was taken over by the Rajasthan Tobacco Company, which was the partnership firm of the parties.
It is contended that the learned District Judge was wrong in holding that the decision in the money suit operated as res judicata in the present case and that he has committed a serious error in reversing the decision of the trial court on that ground.
36. We have gone through the report of the receiver and also the decision of the trial court dated 17th April, 1957. It is conceded by learned counsel for respondent Banshidhar that the present suit was filed earlier on 9th September, 1948, by his client and the second suit for the recovery of the alleged loan was filed in 1954. From the judgment of the trial court dated 17th April 1957, also it appears that the money suit was suit No. 47 of 1954. In, that suit issue No. 3 was as follows :
'Whether the defendants had sold the goods of their share in the said Company of the value of Rs. 4912/5/- towards adjusting the amount of cheque of Rs. 4000/-.'
The learned Civil Judge has in his order dated 17th April, 1957, pointed out that the decision of the court in the money suit was not res judicata in the present case, because Banshidhar had filed that suit in his personal capacity and there was no issue in that case to the effect whether the tobacco of the share of the defendants in the Rajasthan Tambakhu (Tobacco) Manufacturing Company, Nathdwara, was transferred to the partnership firm, viz. the Rajasthan Tobacco Company and therefore the decision in that case could not be res judicata in the present case.
A perusal of the order of the learned District Judge dated 3rd February, 1959, shows that he was unable to grasp the real controversy between the parties and he has committed an obvious mistake in holding that the defendants could not claim any credit for the cost of the tobacco of their share in the Rajasthan Tambakhu (Tobacco) Manufacturing Company, Nathdwara. which was taken over by the partnership firm of the parties, namely, the Rajasthan Tobacco Company. The receiver has dealt with the matter at length in his report and has reported that the defendants had to their credit a stock of 33 maunds, 16 seers and 6 chhataks of tobacco in the stock of the Rajasthan Tambakhu (Tobacco) Manufacturing Company and this stock was taken over by the partnership firm. He calculated the cost of the tobacco after deducting the cost for the shortage in weight and for dust etc.
We agree with the learned Civil Judge that in the money suit the main question for consideration before the court was whether Banshidhar plaintiff had given a loan to the defendants or whether he had advanced the amount for the purchase of the goods belonging to the Rajasthan Tambakhu (Tobacco) Manufacturing Company. The position of the parties with regard to the partnership did not directly arise for consideration and in that case it was not decided how much investment was made by each one of the partners and how much each partner was entitled to be debited and credited in cash or kind. In the present case, the court did not decide the issues which were framed in the money suit and it was incorrect on the part of the learned District Judge to hold that the decision of Issue No. 3 in the money suit was res judicata in the present case. On the contrary, it appears that plaintiff Banshidhar had misled the learned District Judge by raising a false plea of res judicata.
After having obtained a money decree for the amount against the defendants in a separate suit, he could not possibly claim any credit for the value of the tobacco which the defendants had brought in the stock of the partnership and about which he had denied that it was sold to him for the money advanced by him. When the defendants were required to pay the amount decreed against them in the money suit, they could not, at the same time, be deprived of the cost of the tobacco, which they had given to the partnership business. The plaintiff was rightly held liable to pay up the losses which were incurred by the partnership of the parties. The correctness of the account submitted by the receiver was not questioned before the first appellate court. In fact, the first appellate court has expressly mentioned in its order dated 3rd February, 1959, that learned counsel for the appellant before that court had not pressed any other point except the question of res judicata.
The ground of res judicata raised by the respondent having found to have been wrongly decided by the first appellate court, it follows that the decree passed by the trial court on 17th April 1957, was correct.
37. The appeal is, therefore, allowed. Theorder of the learned District Judge Udaipur, dated3rd February, 1959, and the final decree dated30th May, 1959, passed by the trial Court on itsbasis are set aside and the decree of the trial courtdated 17th April, 1957, is restored. The appellantwill receive his costs from respondent Banshidharin this Court as also in the first appellate court.