P L D 1957 Dacca 305 (PLP)

AMIN AHMAD, A. C. J.‑

This Appeal by the plaintiff is from a decision of the District Judge of Chittagong in Other Appeals Nos. 120 and 124 of 1952, modifying and remanding a decision of the Subordinate Judge, 1st Court, Chittagong. It arises out of a suit for specific performance of contract in respect of sale of land with structures thereon. The facts of the case may be briefly stated as follows: The properties in question belonged to one Dalildar Rahman. He died leaving his widow Maqsuda Khatun (defendant No. 3), his two sons, Ejazuddin (defendant No. 1) and Imamuddin (defendant No. 2), and his daughter Badrunnessa (defendant No. 4). After Dalildar Rahman's death, his son Ejazuddin used to manage all the properties on behalf of his mother and his brother and sister, that is, all the other defendants. On the 6th of March 1948, Ejazuddin entered into an agreement for sale of the disputed Property to the plaintiff, on behalf of and with the full knowledge and consent of the other defendants, for Rs. 4,000 and by way of earnest money he also received from the plaintiff Rs. 1,400, and his brother Imamuddin received Rs. 264‑10‑

0. The plaintiff was also put in possession of the Disputed property and the title deeds were also made over To the plaintiff. On the 4th of June 1948, Ejazuddin's mother, Maqsuda Khatun (defendant No. 3) and Badrunnessa (defendant No. 4) came to Chittagong to execute the kabala in respect of the property in question, but as stamp was not available, they left for Dacca; and the defendant No. 2 (Imamuddin) assured the plaintiff to obtain a power‑of- attorney from these two ladies, and to get the conveyance executed by them later on. The plaintiff claims specific performance in respect of the entire 16 annas of the disputed property or at least in respect of 7/10th share of the defendants Nos. 1 and 2, and alternatively, he claims refund of Rs. 1,664‑10‑0 that he paid to the defendants Nos. 1 and 2, Maqsuda Khatun, the defendant No. 3, died after the service of summons of the present suit, and the plaintiff does not claim specific performance in respect of the 4/5th share of the defendants Nos. 1 and 2, after the death of the defendant No. 3 Maqsuda Khatuns. The defendants Nos. 1 and 4 (Ejazuddin and Badrunnessa) contested the suit. The defence of the defendant No. 4 is that she never authorised Ejazuddin or any one to enter into an agreement for sale in respect of the disputed property nor did she have any knowledge of any kind of such an agreement; and that on the other hand she purchased the property herself from the defendants Nos. 1, 2 and 3 in October 1948, without knowing anything about this agreement for sale. The defence of the defendant No. 1, Ejazuddin, is that he never managed the disputed property on behalf of other defendants; that there was no concluded contract and he agreed to sell the property to the plaintiff provided that he (defendant No. 1) succeeding in inducing them to agree to the sale; that the agreement was fraudulently obtained; that he and his brother Imamuddin actually received only Rs. 600 and they were ready to refund that amount; that there could not be any specific performance of a part of contract in respect of 7/10th share of Ejazuddin and Imamuddin and, as a matter of fact, Badrunnessa had already purchased the premises from the defendants Nos. 1, 2 and 3; and that the possession of the property in question was given to the plaintiff only for their temporary accommodation. The following issues were raised at the trial: "(1) Was there any contract for sale of land as alleged in the plaint? (2) Was the alleged contract legal and valid? Was the defendant No. 1 competent to contract for other co‑sharers? (3) Can the alleged contract be specifically enforced? (4) Can the plaintiff get a decree for specific performance of contract against defendant No. 4. (5) Can the plaintiff get his alternative remedy of getting a conveyance against defendants Nos. 1 and 2 alone? (6) Can the plaintiff get a refund of Rs. 1,664‑10‑0 or his alleged costs of repair amounting to Rs. 1,193‑7‑6 pies or any damage as claimed? (7) What relief, if any, is the plaintiff entitled to? The trial Court decreed the suit as follows: "The suit is decreed with costs on contest against defendants Nos. 1 and 4 and ex parte against defendant No. 2 (defendant No. 3 is dead). The plaintiff must deposit in Court to the credit of defendants Nos. 1, 2 and 4 Rs. 2,353‑6‑0, less cost of this suit awarded by med this decree to the plaintiff within two months from the date of signing of the formal decree by this Court, in default this suit will stand dismissed without costs. If the plaintiff deposits the money as directed in the decree defendants Nos. 1, 2 and 4 shall execute and have registered a sale‑deed in respect of the entire premises specified in the plaint schedule in favour of the plaintiff within three months from the date of signing of the formal decree by this Court, and deliver the sale‑deed to the plaintiff on failure of which the plaintiff will get a sale‑deed from the Court in execution of this decree, and in that event the plaintiff will recover costs of the execution case from defendants Nos. 1, 2 and 4 but cost of stamp for the sale‑deed and the registration costs will be payable by the plaintiff." Against this decision two separate appeals were preferred by the defendant No. 1 and defendant No. 4 to the District Judge of Chittagong, and the learned Judge disposed of both the appeals by one judgment. The learned District Judge after setting out the facts briefly, formulated the following points for decision: "(1) Whether there was any concluded contract of sale between the plaintiff and the defendants Nos. 1, 2 and 4, and 3 who is since dead, or did the defendants Nos. 1 and 2 enter into any concluded contract with the plaintiff for the sale of the disputed premises on behalf of them selves and on behalf of the defendants Nos. 3 and 4 and did the defendants Nos. 3 and 4 ratify or accept the contract alleged to have been made by the defendants Nos. 1 and 2 with the plaintiff in this behalf? "(2) If the plaintiff's claim for specific performance fails as regards the share of the defendants Nos. 3 and 4, whether the plaintiff is entitled to a specific performance as against the defendant Nos. 1 and 2, and if so, for what share? "(3) In case the claim for specific performance fails, for what amount the plaintiff is entitled to refund? What is the actual amount advanced by the plaintiff towards the consideration money of the alleged transfer? "(4) Is the defendant No. 4 a bona fide purchaser for value without notice of any contract between the plaintiff and the defendants Nos. 1 and 2." and the operative order in the judgment of the learned Judge is as follows: "Ordered that the appeals be allowed in part on contest and that the Judgment and decrees of the learned Sub ordinate Judge be modified as indicated above, and case be sent back to the Court below for a fresh trial as indicated above, and in the light of observations made before. Both the parties have partially succeeded in this Court, and so I do not allow any cost of appeal. The cost of the trial Court will abide the final result. Court‑fees paid are sufficient." The decree drawn up in Other Appeal No. 120 of 1952 is to the following effect: "It is ordered that this appeal and Other Appeal No. 124 of 1952 be and the same are allowed in part on contest. The judgment and decrees of the learned Subordinate Judge are modified as indicated, and the cases are sent back to the Court below for a fresh trial as indicated, and in the light of observations made in the judgment. There is no order as to cost in appeal as both the parties have partially succeeded in this Court. The cost of the trial Court will abide the final result." Against the judgment and decrees in the two appeals governed by one judgment of the District Judge, the plaintiff has preferred the present two appeals, namely, S. M. A. No. 10 of 1954 and S. M. A. No. 11 of 1954; and in S. M. A. No. II of 1954 the defendant‑respondent No. 1 has also filed a cross‑objection. Mr. Ahmad Sobhan, who appears for the respondent No. 1 (in S. M. A. No. 10 of 1954) and respondent No. 3 (in S. M. A. No. 11 of 1954), has taken a preliminary objection that no appeal lies against an order of remand made by the District Judge. It is contended that according to Civil P. C. the cases where an appeal lies are specifically mentioned in Order XLIII of the Code; that according to Order XLIII, rule 1 (u) of the Code of Civil Procedure an appeal lies against an order under rule 23 of Order XLI remanding a case, but there is nothing in the judgment to show that the order was made under the said provision, and so, it must be taken that the order complained of is an order passed under section 151 of the Code; and that if it is an order under section 151 passed in the exercise of the inherent jurisdiction of the Court, such an order is not appeal-able, and the aggrieved party can move this Court only in its revisional jurisdictions, and this the plaintiff has not done even by filing an alternative application under section 115 of the Civil P. C. In support of his contention the learned Advocate for the respondent has cited a number of cases including the two decisions of this Court, both the decisions being of single Judge, and has pointed out that one learned Judge of this Court has held the view that an appeal lies against an order of remand and other learned Judge has held that no appeal lies against an order of remand, and that this Court can only interfere with the same by exercising its revisional jurisdiction. The learned Advocate has referred to and relied on the following cases: Abdul Rauf alias Lal Mia v. Sherajul Islam (7 D L R 26), Rasul Ali Munshi v. Mst. Anjumannessa Bibi (7DLR112), Ghuzn.7 vi v. The Allahabad Bank Ltd., (I L R 44 Cal. 929 (F B)), Jagathari Saha v. Medini Mohan Burdhan and another (31 C W N 878), Mohendra Nath Chakravarti v. Ramtaran Bandopadhya and another (23 C W N 1049) and Bishwanath Singh v. Abdul Jabbar and others (A I R 1948 All. 19). In answer to the contention of the learned Advocate for the respondent, Mr. Nandi for the appellant strenuously argues that Order XLIII, rule 1 (u) of the Civil P. C. does speci fically provide for an appeal against an order of remand under Order XLI, rule 23 of the Code; that whether such an order is made rightly or wrongly, correctly or incorrectly, the aggrieved party has a right to appeal under the Statute; and that simply because the learned Judge has not complied with the exact provisions of rule 23, it cannot be said that that by itself takes the case out of Order XLI, rule

23. Further it is urged by the learned Advocate for the appellant that there is nothing to show in the judgment under appeal that the order of remand has been made for the ends of justice or under section 151 of the Civil P. C., and that there is nothing to presume that because the provisions of Order XLI, rule 23 of the Code have not been complied with, the order must be one under section 151 of the Code. When we asked Mr. Nandi whether the order complained of could be taken as an order under O. XLI, r. 25 of the Code of Civil Procedure, inasmuch as the learned District Judge has observed that as certain issue was not framed, he sent back the case to the trial Court for the framing and trial of that issue, the learned Advocate was not prepared to accept that position, and he contended that Order XLI, rule 25 does not speak of a case where an issue has to be tried, and the case has to be disposed of by the Court of the first instance, and it applies only in those cases where the appeal is kept on the file by the lower appellate Court, and a particular issue is referred to the Court of the first instance for trial, if necessary, on additional evidence, and then to return the finding of that issue together with the evidence thereof to the appellate Court. Mr. Nandi expands his argument by saying that it may well happen that certain Court may not be aware or may not refer to the exact provisions of Order XLI, rule 23, of the Code of Civil Procedure in remanding a case, and due to the ignorance of those provisions it may pass an order of remand which is not in conformity with the provisions of Order XLI, rule 23, then in that case the aggrieved party cannot be deprived of his right of appeal against this erroneous decision passed under a misapprehension of the exact provi sion of rule 23 of Order XLI. In support of his contention the learned Advocate has taken us through a large number of cases and, in so doing, he has made his comments, some of which are the same as his arguments to which we have already referred to, and to some we shall presently refer. The cases are: Abdur Rashid v. Sm. Joydharennessa and others (6 D L R 33), Bairab Chandra Dutt and others v. Kali Kumar Dutt and others (37 C L J 491), Muhammad Ali Fakir v. Karam Ali Talukdar and others (38 C W N 1202), Prasanna Chandra Chattopadhya and others v. Baidya Nath Mistry and others (31 C L J 360), Kayem Biswas v. Bahadur Khan and others (42 C L J 22), Raj Narayan Kundu and others v. Sheikh Murad Ali and others (52 C W N 671), Mani Mohan Mandal v. Ramratan Mandal (I L R 43 Cal. 148), Muhammad Mujibur Rahman v. Sheikh Isab Surati (32 C W N 867) and Pulin Chandra Kayal and another v. Surat Chandra Kayal and others (72 C L J 383). We may mention that while referring to the cases reported in Mani Mohan Mandal v. Ramratan Mandal (leading judgment of Jenkins, C. J.), and Muhammad Mujibur Rahman v. Sheikh Isab Surati judgment of B. B. Ghose, J.), the learned Advocate also made a point that the lower appellate Court erred in reversing the decision of the trial Court and at the same time remanding it to that Court, and that if the learned Judge was not satisfied with the finding of the trial Court or on the admissibility of any piece of evidence, it was open to the appellate Court to come to its own finding instead of remanding it to the Court of the first instance for the purpose of adducing fresh evidence of proving the inadmissible evidence once again. It is also urged that the issue to which we shall presently refer and which the learned Judge calls a fresh issue, is covered by the issue raised before the trial Court; and that, in any case, whether such an issue was there or not, as the parties proceeded on the footing that there was such an issue and gave evidence thereof there was no necessity of remanding a part of the case to the Court of the first instance maintaining at the same time a part of the finding of the trial Court to the effect that, in any event, the plaintiff will not get more than 7/10th share, and that also he will get provided after remand it is not proved before the Court of the first instance that defendant No. 4 was a bona fide purchaser for value. Mr. J. P. Nag Das, who appears in support of the cross objection, contends that his client is aggrieved by the order of the lower appellate Court inasmuch as both the Courts below relied on Exh. .6, that is, the receipt purported to have been given by his client defendant No 1, Ejazuddin, which is not admissible in law; and that should we hold the view that the appeal lies, his client has filed the cross‑objection in order to agitate that inasmuch as the finding of the Court below is based on this inadmissible piece of evidence the findings should not be upheld. He, however, mentions that if the order of remand remains and is not set aside by us he has no grievance for, his client will have a further opportunity of agitating this question before the trial Court. Mr. Nandi after pointing out the findings of the lower appellate Court to which his client takes exception, concluded his argument by inviting us to exercise our revisional juris diction under section 115 of the Code of Civil Procedure in case we happen to hold against him on the preliminary point. It is pointed out by Mr. Nandi that if we are really t satisfied that the order under appeal is without jurisdiction or not in accordance with law whether any appeal lies against it or not, we should treat the Memoranda of these Appeals as applications for revision, and interfere with the order complained of, and give such relief to the plaintiff as he may be entitled to. We have gone through and examined the cases cited by the learned Advocates for the appellant and the respon dents, and also the two decisions of this Court ‑one by Ibrahim, J., and the other by Akbar J. For sometime the trend of decisions of the Calcutta High Court was that against an order like the present one an appeal lay. In the case of Basumati Devi v. Taritbasini Dasi (31 C L J 354), Richardson and Beachcroft, JJ. in respect of an order of remand 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 the learned Subordinate Judge to make 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." But for the desision of the case of Mohendra Nath Chakravarti v. Ramtaran Bandopadhya, in which Walmsley and Shamsul Huda, JJ. took a contrary view, the ruling of 31 C L J 354 (1918), was followed by the Calcutta High Court in a series of cases up to 1924, namely, Prasanna Chandra Chattopadhya v. Baidya Nath Mistry. Basumati Devi v. Taritbasini Dasi Radha Krishan Saha v. Kamal Kamini Debya and others (35 C L J 345), Bhairab Chandra Dutt v. Kali Kumar Dutt, Kayem Biswas v. Bahadur Khan. But in the two cases of Jagathari Saha v. Mondini Mohan Burdhan and another, (decided on the 30th May 1927), and Banka Behari Deb v. Birendra Nath Dutta (I L R 55 Ca1. 219), (decided on the 8th June 1927;, where some of the cases that we have mentioned above have been referred to, their Lordships Page and Graham, JJ. (the leading judgment being of Page J.) took a different view. In the case reported in 31 C W N 878, it was held that when a case is decided on merits and not on a preliminary point, and the Court of appeal frames an issue and remands the whole case for rehearing and disposal on that issue, the lower appellate Court purports to act under Order XLI, rule 25, and not under Order XLI rule 23 (although it had jurisdic tion under neither), and no appeal lies. Similarly, in Banka Beharf's case. Page, J. referred to the following cases, Mani Mohan Mandal v. Ramratan Mandal, Baikunta lyath Goswami v. Sita Nath Goswami (1 L R 38 Cal. 421), Ghuznavi v. The Q11,ahabad Bank, Limited, Mohendra Nath Chatcravarti v. Ramtaran Bandopadhya, Basumati Devi v. Taritbasini Dasi, Radha Krishna Shaha v. Kamal Kamini Debya, Bhairab Chandra Dutt v. Kali Kumar Dutt, Mohini Mohan Roy v. Ramadas Pararnrhpnsa (28 C W N 271), and Kayem Biswas v. Bahadur Khan. In Banka hair s case, where s the lower appellate Court ordered o remand for rehearing of a case as a whole which had finallly been decided on the merits by the trial Court, their Lordships inter alia held that the condition precedent to exercising the power of remand under Order XLIII, rule 23 of the Code of Civil Procedure not having been fulfilled, the order, of remand was ultra vires and that the order of remand having been made without jurisdiction, and being one from which no appeal lay, the High Court had jurisdiction to treat the Memorandum of Appeal as an application under section 115 of the Code of Civil Procedure and revise the order. As to the jurisdiction of lower appellate Court to rem4nd the case under Order XLI, rule 23, in that case of Danka Behari, Page, J., observed as follows: ". . . . . . . . . . . . Under what principle of law Cart it be held that the order must be deemed to have been made under rule 23 merely because the Court when passing the order purported to be acting or intended to act under rule 23? If it is contended that the order must he so regarded because otherwise an appeal will not lie, and injustice might take place; with all respect that is to legislate and not to administer the law. I invited the learned skil for the appellant to suggest any legal basis to support the view that an order which was not and could not have been made under rule 23 must be treated as having been made under rule

23. No answer was forthcoming, and no satisfactory answer, I think, can be found. In my opinion it never was intended or contemplated that whether km' order of remand was appeal-able or not should dependent not upon whether the conditions laid down by Order, rule 23, had been complied with, but whether the learned Judge purported or did not purport to make the order under rule 23." From the decisions in the above two cases it appears that their Lordships Page and Graham JJ. were not inclined to accept the view that an appeal lay in a case where it was contended that the Court of appeal purported or intended to act under Order XLI, rule 23 of the Civil P. C. though the provisions of Order XLI, rule 23, were not complied with. Order XLI, rule 23, runs thus: "Where the Court from whose decree ark 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 bye 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." After going through the provisions of this Rule 23 it with be found that apparently these provisions enable the appellate Court to remand the case only in those cases where the Court of the first instance has disposed of the suit on preliminary point and that decision is reversed in appeal; and when a case is remanded by the appellate Court under these circumstances, it is also open to the appellate Court to direct that certain issue should be tried in the case so remanded and then determine the suit after considering the evidence, if any that was recorded during the original trial. On the face of it, according to Order XLI, rule 23, read with section 107 of the Code the appellate Court has got very limited power of remand. It is all very well to say that the appellate Court may not know the provisions of Order XL1, rule 23 of the Civil P. C., and may remand a case without following its provisions and without applying its mind to find out whether those provisions at all applied to a particular appeal, but all Courts must be credited with the minimum knowledge of law, namely, the provisions of the Statute. Whether they applied those provisions rightly or wrongly, is another matter; but it is too much to say that the Court in ignorance of those provi sions of law has exercised a power not given by any provision of the Statute. We have also gone through certain decisions according to which it is invariably held that where it cannot be ascertained from the judgment whether a particular decision is under Order XLI, rule 23 of the Code of Civil Procedure or not, it must be presumed to be one under section 151 of the Code. We find it difficult to accept that view again, for there is a special provision in the Code of Civil Procedure enabling the appellate Court to remand a case, and we see no reason why, if a case is remanded, it should be taken that it is remanded under section 151 simply because the provisions of Order XLI, rule 23, are not applicable. If Order XLI, rule 23, does not apply, there cannot be any question of any appeal by simply calling it an order under Order XLI, rule 23 nor is there any reason for saying that it is an order under section 151 simply because it cannot be brought within the purview of Order XLI, rule 23, Order XLI, rule 23, is expressly and exclusively applicable to a suit which the Court of the first instance has disposed of on a preliminary point only, and not on the merits. It has no application to any other suit disposed of on its merits, but if the appellate Court does not apply it at all and thinks that it cannot do justice in any way except by invoking the aid of section 151 of the Code of Civil Procedure, and the case is of such an exceptional nature that it demands interference under section 151, it must be then an order under section‑151; and that clot because Order XLI, rule 23, does not apply but because section 151 applies, and it is actually applied in such an excep tional case. But it is quite possible to have a case where neither Order XLI, rule 23, nor section 151 applies. We may now refer to rule 25 of Order XLI of the Civil P. C. which runs thus: "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 case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the appellate Court together with its findings thereon and the reasons therefore." We have mentioned Order XLI, rule 25; because Page and Graham JJ. in both the cases I L R 55 Cal. 219 and 31 C W N 878, have referred to this Rule and said that where an issue is sent back to the Court for trial though the case is not kept on the file, it may be said that the Court has exercised its jurisdiction under Order XLI, rule

25. But whether it is an order under Order XLI, rule 23, or an order under Order XLI, rule 25, or under section 151, none of them is appeal-able, and if an order made by the appellate Court is not an order under any of these three provisions and is passed illegally or without jurisdiction, it can only be set aside by this Court under section 115 of Civil P. C. We may refer to the decision in the case of A. T. S. P. Athappa Chetty and others v. Ramanathan Chetty and others (A I R 1920 Mad. 898) in which it is observed as follows: "The main argument of the learned Vakil related to the inherent power of the Court to make a remand other than under the conditions mentioned in rule 23, Order XLI. We are prepared to agree with him that section 107 of the Code in terms only refers to Order XLI, rule

23. But section 107 of the Code does not contain any provision, as was found in the Code of 1882, section 564, limiting the right of remand only to conditions prescribed by the Code. The enactment of section 151 suggests that the Legislature contemplated the exercise of powers ex debito justitiae which were not specifically conferred by the rules. This is the view taken by a Full Bench of the Calcutta High Court consisting of five Judges, Abdul Karim Abu Ahmed Khan Ghaznavi v. Allahabad Bank, Ltd. The same view was taken in Vemula Jambalya v. Iskala Rajamma (I L R 36 Mad. 492) and in Kuppelan v. Kunjuvalli (9 I C 7 90). We see no reason for not following these decisions. It is true that where a power is given expressly, Courts should not exercise their inherent power, which ought to be very cautiously indented upon. But this argument is not against possessing the power, but is only against its improper use; we must overrule this contention. "A. Mr. Krishnaswami Aiyer next contended that if nothing more appears on the face of the judgment than a bare order of remand, the lower Court must be taken to have acted wrong ly in exercising the power under Order XLI, rule 23, rather than attribute to it the intention to exercise its inherent power. As a corollary to this argument he contended that if a wrong order is passed under the section, the right of appeal is not taken away. The corollary will be right only if the original contention is sound. Rightly or wrongly, for some years Courts in this Presidency have been informed by the High Court that they have an inherent power of remand; vide Ramchandra Joshi v. Hazi Kassim (I L R 16 Mad. 207) Kuppalan v. Kunjuvalli and Vemula Jambalya v. Iskala Rajamma. There is no reason for imputing to the lower Courts ignorance of these decisions and for suggesting that the power was wrongly exercised under Order XLI, rule 23." It seems to us that the conflicting decisions of the Calcutta High Court and our Court are all due to the fact that Order XLI, rule 23 of the Code of Civil Procedure does not give enough power to the appellate Court to remand the case freely, and it can be done only in exceptional cases where on a prelimi nary objection the suit had been disposed of by the Court of the first instance with the result that where the Court can not remand a case under Order XLI, rule 23, it either purport ed to act under section 151 or it is taken that it has acted under section 151, and, therefore, it is sometimes held that if the Court has acted under section 151 of the Code of Civil Proce dure, against such an order only an application in revision lies under section

115. From the amendment of this Order XLI, rule 23, made by the different High Courts of late it also ap pears that all the High Courts including this High Court, which amended it only on the 28th of March 1955, by its Notification No. 2584‑G., felt this difficulty from time to time on account of the conflicting decisions which made the position of the party very uncertain. It will appear that Order XLI, rule 23, has been amended by the Madras High Court, Lahore High Court and Allahabad High Court; and the Notification which has come into force here as mentioned above, is as follows: "Order XLI, rule 23‑A‑Where the Court from whose decree an appeal is preferred has disposed of the case other wise than on a preliminary point and the decree is reversed in appeal and a retrial is considered necessary, the appellate Court shall have the same powers as it has under rule 23." But from rule 23 as it remained before the amendment, that is to say, without rule 23‑A, we do not find it difficult to holds that against an order of remand, particularly in the facts and the findings of the lower appellate Court in the present case, no appeal is maintainable, for clearly it is not an order of all appellate Court which has reversed the decision of a trial Court that disposed of the suit on a preliminary point. In the present case the parties filed their pleadings, and several issues where raised, and after hearing the parties and the arguments on their behalf the Court of first instance came to the finding on each and every point. The lower appellate Court referred to all the points and the evidence on record, even believed and disbelieved some, affirmed certain findings of the trial Court, and did not agree with certain findings, and remanded the case to the Court of the first instance for fresh trial and not even on the evidence already on record only. So, this preliminary objection as to the non‑maintainability of the appeal must be upheld. It now remains for us to consider whether we should, in the circumstances of the case, exercise our jurisdiction under section 115 of the Code of Civil Procedure and treat the memoranda of these appeals as applications under section 115 of the Code. Ordinarily we would not and normally it should not be done, for it was open to the appellant to file alterna tive applications under section 115 of the Civil P. C. at the time he filed these appeals, if he had any doubt as to whether the appeals were maintainable or not. But after going through the judgment of the lower appellate Court, we feel that the plaintiff should not suffer only because he did not file an alternative application for revision; as these decisions are so conflicting, it may well be presumed in his favour, that he had sufficient reason to think that his appeal would be held to be maintainable. Be that as it may, if our jurisdiction can be exercised under section 115 by treating the memoranda of these appeals as applications in revision, in our opinion, this is a fit case in which such a jurisdiction should be exercised. It appears from the judgment that the learned District Judge was not sure of what finding he was arriving at. Our attention has been drawn to certain outstanding features of the judg ment under appeal. Mr. Nandi points out that the trial Court decreed the plaintiff's share for 15 annas, and although the appellate Court remanded the whole case, it cut down his share to 3/10th and also made that 3/10 available on condition that the defendant No. 4 was not found to be the bona fide purchaser for value after re‑trial. The issue, it is urged, whether the defendant No. 4 was a bona fide purchaser for value or not, has already been tried by the trial Court but still the lower appellate Court has remanded the case to the trial Court for disposal of the same after taking fresh evidence on the point, and this will enable the party concerned, to fill up the lacuna. It is pointed out that at page 16 of the Paper Book the learned Subordinate Judge has observed as follows: "The statement of Badrunnessa and her husband Mr. Karim, that the former did not know of the contract of sale to plaintiff up to the time of execution of Kabala (Exh. B) is entirely false. The power‑of‑attorney is dated 3rd August 1948, Ejazuddin advances no reason to support his statement that he did not inform the female defendants of the contract of sale with the plaintiff although Ejazuddin met them at least early in June 1948, and he was sometimes writing letters to Badrunnessa, Mr. Karim has made the incredible statement that from his memory he gave all the detailed particulars that are recorded in schedule to Kabala (Exh. B)." The learned Advocate has also drawn our attention to the observations of the learned District Judge at page 33 of the paper Book, which is to the following effect: "This raises the question whether the plea taken up by the defendant No. 4 as a bona fide purchaser for value is set up. That issue has not been framed by the learned Subordinate Judge and has not been considered by the learned Subordinate Judge at all. If the defendant No. 4 is a bona fide purchaser for value without notice of the contract between the plaintiff and the defendants Nos. 1 and 2, certainly the plaintiff is not entitled to a specific perfor mance even as regards the shares of the defendants Nos. 1 and 2 are concerned. In that case the only remedy of the plaintiff would be to get refund of the purchase money paid by the plaintiff to the defendants Nos. 1 and 2." It is also pointed out that from the latter observations it will be found that the learned District Judge has even held that in case it is found that the defendant No. 4 is a bona fide purchaser for value, he will not get even that 7/10th share. In this connection it is also urged, as we have already indicated, that the appellate Court has no jurisdiction to reverse the decision of the trial Court, and at the same time remand the case for fresh trial. We may refer to the following observations relied upon by Mr. Nandi in Mani Mohan Mondal v. Ramratan Mandal (leading judgment by Jenkins C. J.): "It has been suggested before us that rule 23 is not exhaustive, and for that purpose we have been referred to section 107, subsection (1), clause (b) of the Code where, no doubt, it is said in general terms that an appellate Court shall have power to remand a case. But this argument overlooks the opening words of the section which provides that subject to such conditions and limitations as may be prescribed a Court shall have that power. If we turn to the definition clause we find that `prescribed' means prescribed by rules, and `rules' means rules and forms contained in the First Schedule or made under section 122 or section

125. These rules provide that in the case of a lower apppllate Court the power of reversal and remand is limited to the position described in rule 23, Order XLI. And this is the general rule except under special conditions which have no application in the circumstances of this case. "I may here point out what is obvious on a perusal of the Code as a whole that the Code, consists (i) of that which is termed `the body of the Code', and (ii) of the rules. "The body of the Code is fundamental and is unalterable except by the Legislature, the rules are concerned with details and machinery and can be more readily altered. Thus it will be found that the body of the Code creates jurisdiction while the rules indicate the mode in which it is to be exercised. If follows that the body of the Code is expressed in more general terms, but it has to be read in conjunction with the more particular provisions of the rules. "In this case it appears to us that the learned Judge clearly had no authority to reverse and remand." We may also refer to the following observations in Md. Mujibur Rahman v. Sheikh Isab Surat, relied upon by the learned Advocate for the appellant: "Next with regard to the question of the order of the Additional District Judge sending back the case to the Munsif for fresh trial, we are of opinion that this order is wrong in form. What the Judge ought to have done was to decide the issue himself. The Munsif framed the issues and decided it against the plaintiff. If the learned Judge on appeal thought that it was not properly decided he might revese that decision if he chose, but he had no right to set aside the judgment of the trial Judge and remand that issue for re‑trial. The learned Judge must himself decide the issue upon the evidence on the record, and if he thinks that it is necessary for him to take any addi tional evidence under Order XLI, rule 27, if there is any good ground for such evidence being admitted, he may follow that procedure; but in any case he had no right to send the matter back for re‑trial to the Court of first instance." We may, however, observe that the case of Pulin Chandra Kayal and another v. Sarat Chandra Kayal (judgment of A. N. Sen J.), relied upon by Mr. Nandi, has no application to the facts of the present case. In that case the Court of the first instance disposed of the suit only on preliminary point and did not dispose of the suit on the other issues. It appears from the judgment of the lower appellate Court that the learned District Judge has held that the Ammuktarnama (Exh. 1AA) was not duly proved and it seems to us that by his order of remand the learned Judge wanted to give another opportunity to the parties to prove it, and in this the learned Judge was not justified. If he wanted, he could have excluded the evidence, which was inadmissible in law, and come to his own finding on the rest of the evidence that was duly taken in. We must observe that it is difficult to make out exactly what the learned District Judge upheld and what he reversed by his judgment, for although in his operative order he mentioned that both the appellant and the respondents succeeded in part, he remanded the entire case for fresh trial. The parties concerned can hardly know their exact position; and we may refer to the following observa tions in the judgment from which it will appear that the learned District Judge wanted to impose on the trial Court certain findings of its own and at the same time directed the trial Court to try the suit de novo and in this also we think, he is not justified under the provisions of law: "So for as the defendant No. 4 is concerned there is no reliable evidence in this case to prove that she ever entered into any contract with the plaintiff or that she authorised defendants Nos. 1 and 2 to enter into any contract on her behalf and it is admitted that she was paid no consideration. In fact, the alleged Ammuktarnama was not even registered by her and the contents of the entire Ammuktarnama also are not before the Court. So, the plaintiff's claim of specific performance in respect of the defendant No. 4 must go and so far as the defendant No. 3 is concerned, that can only be decided finally if the Ammuktarnama is duly and legally proved before the Court and the whole document is con sidered and the defendants are given an opportunity to controvert the contents or the alleged admissions made therein. So far as the shares of defendants Nos. 1 and 2 are concerned, Le, the 7/10th share each, it is not disputed and the plaintiff will certainly get a decree for specific performance in respect of that share on the proportionate price of Rs. 4,000. "This raises the question whether the plea taken up by the defendant No. 4 as a bona fide purchaser for value is set up. That issue has not been framed by the learned Subordinate Judge, and has not been considered by the learned Subordinate Judge at all. If the defendant No. 4 is a bona fide purchaser for value without notice of the contract between the plaintiff and the defendants Nos.1 and 2, certainly the plaintiff is not entitled to a specific performance even as regards the shares of the defendants Nos.1 and 2 are concerned. In that case the only remedy of the plaintiff would be to get refund of the purchase money paid by the plaintiff to the defendants Nos. 1 and

2. In the circumstances the case has got to be sent back to the Court below, where the learned Subordinate Judge, will consider the issue whether the purchase by the defendant No. 4 is a purchase for valuable consideration without notice. If he finds that it was not a bona fide purchase for value without notice, then only the plaintiff would get a decree for specific performance in respect of the shares of the defendants Nos. 1 and 2, i.e., 7/10th each. Of course, there also the learned Subordinate Judge will have to consider the question of the defendant No.3's share after the Ammuktarnama is duly and legally put in and the defendants get an opportunity to controvert that document ..Now this question of refund of properties will only arise if the plea of bona fide purchase by defendant No. 4 is accepted or even where it is rejected. If the plea of bona fide purchase is accepted the plaintiff would certainly get refund of this amount from the defendants Nos. 1 and

2. If the plea of bona fide purchase is rejected, even then the plaintiff would not get any decree for specific performance beyond 7/10th share plus the question of defendant No. 3 being decided on this point. In that case also the amount paid by the plaintiff, namely, Rs. 1,646‑10‑0 would have to be adjusted towards the price. These are the questions which have got to be considered on remand by the learned Subordinate Judge . . . . . The case will have to go back to the Court below for a fresh trial on the points as indicated above and in the light of the observations made above." Although the appeal is incompetent, we have no doubt that the order complained of and made by the learned District Judge is neither an order under Order XLI, rule 23 of the Code of Civil Procedure nor an order under Order XLI. rule 25, nor an order under section 151 of the Code, but it is an order without any jurisdiction as will appear from what we have set out above at length. Therefore, we treat the memoranda of these appeals as applications for revision under section 115 of the Code of Civil Procedure, set aside the judgment and decrees of the lower appellate Court, and send the cases back to that Court fort re‑hearing of appeals in accordance with law and in the light of the observation made above. The costs of these proceedings so far as the appellant and the respondent No. 1 (in S. M. A. No. 10 of 1954) and respondent No. 3 (in S. M. A. No. 11 of 1954) are concerned will abide the result. The cross‑objection filed by the defendant‑respondent No. 1 (in S. M. A. No. 11 of 1954) is accordingly, dismissed. As to the cross‑objection, Mr. J. P. Nag Das for the cross‑objector prays that the Court‑fee paid by his client on the cross‑objection should be refunded, for, it was on account of no fault of his client that the cross‑objection was filed and Mr. Nag urges that it is the appellant who filed the appeals though he should have filed applications in revision under section 115 of the Code of Civil Procedure, and that until our decision that the appeal is not maintainable his client did not know that he was not required to file any cross objection. When we pointed out to Mr. Nandi that we proposed not to let the cross‑objector have refund of the Court‑fee and that the appellant should pay the amount of Court‑fee paid by Mr. Nag's client on the cross‑objection by way of out‑of‑pocket costs, namely, Rs. 168‑12‑0, Mr. Nandi argued that the defendant respondent No. 1 (in S. M. A. No. 11 of 1954) need not have filed the cross‑objection for even if the appellant succeeded in his appeals in this Court the cross‑objector would also have got the benefit thereof. We are not at all impressed by this argument of Mr. Nandi, and we hold that as Mr. Nandi's client made the initial mistake of not only not filing applications in revision but also not filing alternative applications at the time the appeals were filed, he should pay this amount of Rs. 168‑12‑0 by way of costs to the cross‑objector defendant respondent No. 1 (in S. M. A. No. 11 of 1954) which we hereby order. It also appears that the memoranda of appeals which have now been treated as applications in revision by us, do not bear the necessary Court‑fee. So, we call upon Mr. Nandi to pay the deficit Court‑fee required of him before we sign our judgment, and the learned Advocate undertakes to put in the same by the 20th of July 1955. If the deficit Court fee is not put in by 20th July 1955, these cases will again appear in the list on the 21st of July 1955. RAHMAN, J.‑

I agree. K. B. A. Case remanded for retrial.