N.N. Mithal, J. - (1.) A suit was brought by the Plaintiff -Respondent with the allegation that the sale deed in dispute purporting to have been executed in the name of the Plaintiff was obtained by false impersonation and was as such void. The trial Court, by its order dated 17 -12 -1980 held that the suit was not cognizable by the Civil Courts and thus directed the return of the plaint for presentation to the proper Court.
(2.) WHEN an appeal was filed, the lower appellate Court was of the view that on the plaint allegations, it was obvious that the revenue Court would not be competent to grant the relief of cancellation of the sale deed and no relief in respect of the said sale -deed could be granted by those Courts. It, therefore, held that in view of Section 331 of the U.P. Zamindari Abolition and Land Reforms Act, the jurisdiction of the Civil Courts was not barred. Accordingly the appeal was allowed and the case was sent down to the trial Court for trial. Against this order, the present FAFO has been filed purporting to be one under Order 43 Rule 1(u) Code of Civil Procedure treating the order passed by the lower appellate Court as one of remand. A preliminary objection has been taken by Sri. Radha Krishna, learned Counsel appearing for the Respondent. According to him the order of the lower appellate Court is not one for remand but in fact it is an order setting aside the decision of the Court below under Order 7 Rule 10 Code of Civil Procedure. According to him the trial Court order was appealable under Order 43 Rule 1(a) Code of Civil Procedure and in exercise of that right, the Plaintiffs had filed an appeal before the Court below. Once, that appeal has been decided and the order of the trial Court is set aside a consequent order was necessary that the suit should go down to the trial Court to be proceeded with from the stage where the plaint was ordered to be returned by it. He, further, urged that in view of Section 104(2) Code of Civil Procedure no further appeal would lie to this Court.
(3.) THERE appears to be sufficient force in this submission. An order of remand contemplated under Order 43 Rule 1(u) Code of Civil Procedure is one that is passed by the Court in appeal against the decree under Rule 23 or 23A of Order 41 of the Code of Civil Procedure and the relevant provision reads as under: 1. Appeals from orders. - An appeal shall lie from the following orders under the provisions of Section 104, namely: (a) to (t) ... (u) an order under Rule 23 or Rule 23A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court.;