- (1.) THIS is a second appeal by the defendants vendees in a suit for pre-emption.
(2.) ONE Chandanmal, defendant No. 6, sold his house to Natha and his four sons, defendants 1 to 5 by a deed dated Besakh Vadi 11, Svt. 2003 in consideration of Rs. 1,201,' -. The suit was instituted on 16th December 1947 on the allegation that the plaintiff had come to know of the sale on the 15th May 1947. The vendees pleaded inter alia that the plaintiff had no right of pre-emption, that the Court had no jurisdiction, that the suit was barred by time, that certain improvements had been made by the vendees and the plaintiff was liable to reimburse them to the extent of Rs. 1,839/13/- and that the plaintiff was also liable to pay the amount spent by the vendees for obtaining pattas. Interest was also claimed on the amount of consideration and the money spent on improvements. The trial court framed six issues, recorded all the evidence and found that the court had jurisdiction and the plaintiff had a right of preemption. The suit was, however, held to be barred by time. No finding was given on the issues Nos. 4 and 5 which related to the amount spent on improvements the, liability to pay interest and reimbursement on account of obtaining patta. The suit was dismissed on the ground that it was barred by time. On appeal, the learned Additional District Judge, Jodhpur, held that the suit was within time. He, however, came to the conclusion that no final order could be passed by him as issues Nos. 4 and 5 had not been decided by the lower court. He accordingly made an order in the following terms: - "the case is referred to the Civil Court Balotra (trial court) for submitting its recommendations on issues Nos. 4 and 5 after hearing arguments of the parties and taking such additional evidence which it considers necessary in the interest of justice. The report should be submitted within one week of the receipt of the order. " The defendants-vendees have filed an appeal purporting to do so under Order XLIII, rule 1 (u) of the Code of Civil Procedure. A preliminary objection has been raised by counsel for the respondent that the order of the lower appellate court was not under Order XLI, rule 23 C. P. C. and therefore the appeal was not competent. Various authorities were cited at the Bar none of which was on all fours with the present case. Learned counsel for the appellants cited Royal Calcutta Turf Club vs. Kishenchand (1) (A. I. R. 1942 Lahore, 179.), Madhaorao vs. Keshao (2) (A. I. R. 1941 Nag. 304.), Jatindra Nath Raha vs. Kali Kista Roy (3) (143 I. C. 823.), Alagammal vs. Sadasiva Padayachi (4) (129 I. C. 47.), and, Agent, Bengal Nagpur Rly. vs. Beharilal Dutt (5) (90 1. C 426. ). In the first case the suit was dismissed by the trial court on the ground that no cause of action arose to the plaintiff. On appeal, that finding was set aside and the case was remanded for trial on merits and it was held that the order was under Order XLI, rule 23 of the Code. In the second case, the plaint was rejected for non-payment of court-fees. On appeal, it was held that a reduced amount of court-fees were required to be paid for which time should be given to the plaintiff. The case was remanded for a fresh trial on merits. In the third case, a certain enhancement of rent was allowed by the first court but on appeal the principles on which the enhancement was to be made were altered and the suit was remanded for a fresh decision according to the directions given by the appellate court. In the fourth case, the trial court gave a decree for possession to the plaintiffs but on appeal it was held that the defendants were entitled to redeem the property and the case was remanded for determining the amount payable on redemption and for disposal of the suit according to law. In the last case, the suit was dismissed as being not maintainable. On appeal, the decree was set aside and the case was sent back to the lower court for amendment as directed and for a fresh trial. In all these cases, it was held that the order passed was under Order XLI, rule 23 C. P. C. , and a second appeal under Order XLIII, rule l (u) was competent. In every case, however, the decree of the lower court was set aside and the suit was remanded for a fresh trial on the merits. In the present case, although the finding on the preliminary issue was set aside, the decree of the lower court was not reversed in appeal, and the trial court was also not directed to decide the suit afresh. It was argued that as the suit had been dismissed on the preliminary point and the finding was reversed on appeal, the lower appellate court should have remanded the case for a fresh trial. This could be done by the court if the vendees did not question the decision on the points of jurisdiction and the plaintiffs right to sue, or if so questioned, the appellate court also, agreed with the lower court on those issues. But according to Order XLI, rule 23, C. P. C. the lower appellate court was not bound to remand the case for a fresh trial on merits as the language is that "the appellate court, may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be 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 readmit the suit under its original number in the register of civil suits, and proceed to determine the suit. " This is an enabling provision and not one which compels the appellate court to send the case back for a fresh trial on the merits. In the present case, the court did not reverse the decree of the lower court and did not send the case back to the trial court for a fresh determination. What it purported to do was that it kept the appeal on its record and asked the lower court to give its findings on the two issues on which no opinion had been expressed by that court. The intention of the appellate court was to dispose of the appeal on receipt of the findings on those issues. The order was one which was permissible under Order XLI, rule 25 of the Code. A similar view has been taken in Gopimal vs. Ishardas (1) (A. I. R. 1918 Lahore 377.) The lower appellate court has also mentioned Order XLI, rule 25, C. P. C. under which it purported to act, in another part of the judgment. There is no appeal provided against an order passed under O. 41, r. 25 of the Code. The order passed by the lower appellate court is only an interlocutory one and does not purport to dispose of the appeal that had been filed in that court. A second appeal is, therefore, incompetent. This appeal is rejected as being incompetent. The appellants will pay half the taxable costs to the respondent pre-emptor. .;