Wanchoo, C. J. - (1.) THIS is a second appeal by Manaklal against the judgment and decree of the Civil Judge of Jaisalmer. The appeal came up for hearing before a learned Single Judge of this court, and he has referred it to a Division Bench.
(2.) A suit was brought by Madanlal plaintiff respondent against Manaklal and 2 others who are defendants respondents. The plaintiff prayed for redemption of a certain shop. The suit was contested by the defendants, and they denied the right of the plaintiff to redeem the shop. The Suit was dismissed by the Munsif holding that the plaintiff had no right to redeem the shop. The Munsif also held that the suit was barred by limitation, though there was no issue as to limitation. There was an appeal by the plaintiff, and the first appellate court held that the plaintiff had a right to redeem. As to the question of limitation, the first appellate court held that as no issue had been framed on it, the parties were not able to lead all the evidence that was required. It, therefore, set aside the decree of the Munsif, and remanded the suit with a direction that an issue of limitation should be framed, as after such evidence as might be adduced by the parties, the suit should be disposed of according to law. A decree was framed consequent on this judgment of the first appellate court, and Manak-mal defendant has come in second appeal from that decree. A preliminary point was raised before the learned Single Judge of this Court, namely that the appeal was not maintainable as there was no final adjudication of the matters in controversy in the suit by the lower appeal-late court. The learned Single Judge was inclined to accept this contention, but considering the importance of the matter referred the case to a Division Bench. We have heard learned counsel on this preliminary point only, and have come to the conclusion that on the circumstances of the case an appeal lies. The main reliance on behalf of the plaintiff is placed on the definition of the word "decree" in sec. 2 (2) of the Code of Civil Procedure, and on Balliram Ganpatrao Bhoot vs. Manohar Damodhor Bhoot (l ). Decree in defined as follows - "decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit, and may be either preliminary or final. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Explanation - A decree is preliminary when further proceeding have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final. " It is urged on behalf of the plaintiff that the order of the first appellate court is an order of remand under sec. 151 from which no appeal lies, and that no decree has been really passed by the first appellate court disposing of the suit. It is also urged that it cannot be said that the decision of the first appellate court amounts to a preliminary decree, and so no second appeal lies to this Court in any view of the matter, Learned counsel for the appellant also relies on the definition of the word "decree' and urges that the decision of the first appellate is court is a decree within the meaning or that definition. Let us analyse the definition of the word "decree". Before a decision of a court, can be said to be a decree, the following conditions must be fulfilled - (1) There must be a formal expression of an adjudication. (2) That expression, so for as the court expressing it is concerned, conclusively determines the rights of the parties. (3) This determination may be with regard to all or any of the matters in controversy in the suit. Shri Murlimanohar, appearing for the appellant, submits that there is a former expression of an adjudication in this case, inasmuch as the first appellate court has framed a decree in accordance with its decision, and so the first condition is satisfied. He further submits that the second condition is also satisfied, inasmuch as the first appellate court has conclusively determined the rights of the parties on one of the two questions with which it had to deal, namely the right of the plaintiff to redeem. Be further submits that the third condition is also satisfied because it is not necessary for an adjudication to be a decree that it must decide all the points in controversy in the suit, it is enough if any of the matter in controversy in the suit are conclusively determined. We are of opinion that the contention of Shri Murlimanohar is correct, and the decision of the first appellate court in this case does amount to a decree. In Rahimbhoy Habibbhoy vs. C. A. Turner (2), a question arose as to the meaning of the word "final'' appealing in sec. 595 of the Civil Procedure Code of 1882 That was a suit for accounts, and an issue arose whether the defendant was liable to account. His plea was that he was not. The trial court decided that he was liable to account In part, and ordered the taking of accounts. There was an appeal from this to the High Court, and the decree of the trial court was prectl-cally confirmed. The High Court, however, refused leave to appeal to the Privy Council on the ground that the decree was not final. Their Lordships of the Privy council held that in the circumstances the decree was final and granted special leave. It is urged on behalf of the plaintiff that this case is distinguishable on the ground that the decree would now be considered a preliminary decree and would be liable to appeal. That is so, but the reason behind the judgment of their Lordships of the Privy Council was that the point whether an account should or should not be taken had been finally determined, and therefore that adjudication amounted to a decree, and an appeal would lie even though the arithmetical calculations, which would finally give rise to a decree for a certain sum of money, had not till then been made. In Saiyid Muzhar Hosein vs. Mussamat Bodha Bibi (3), a question arose whether leave to the Privy Council should have been granted. In that case a suit was raised on a gift by will Among other defences it was contended that there was no valid gift. The trial court held that the will had not been proved, and without deciding the other points raised in the suit dismissed it. There was an appeal to the High Court which decided that the gift by will was valid and the suit was remanded for decision on other issues. There was a petition to the High Court for leave to appeal to the Privy Council, but that was dismissed on the ground that the order objected to was not a final order. Their Lordships of the Privy Council held that the decree of the High Court was final as the cardinal point in the suit had been finally decided, and after that decision it could never be disputed again. Reliance was placed on the principle laid down in Rahimbhoy Habibbhoy's case (2) cited above. These two cases, it our opinion, lay down the principles on which a court has to decide to whether there has been a determination of some of the rights in controversy between the parties. If there is such final determination, and that adjudication is expressed formally there is obviously a right of appeal. It must however be added that these cases are not exactly to the point because the provisions relating to appeals to the Privy Council are somewhat different. Turning to the cases which are exactly to the point, we may refer to the Bhairab Chandra Dutt vs. Kali Kumar Dutt (4 ). In that case the suit was for partition, and the trial court dismissed it. There was an appeal and the first appellate court, without deciding any of the issues in the suit, ordered a retrial after reversing the decree of the trial Court. There was then a second appeal to the High Court and the question arose whether a second appeal would lie. The view, that was taken, was that the appeal lay as there was a decree by the District Judge reversing the decree of the trial court. This case taken an extreme view, and if we may say so with respect has not considered the definition of the word "decree" appearing in sec. 2 (2) of the Civil Procedure Code. The definition requires that there should be conclusive determination of the rights of the parties with regard to all or any of the matters in controversy in the suit, and in that case the District Judge had decided nothing. We feel therefore that we cannot go as far as that case. But where the first appellate court has come to a decision finally on any of the matters in controversy in the suit, and reverses the decree of the trial court and remands the case for decision on other points, there would be a decree within the meaning of that term in sec. 2 (2), and an appeal would lie.
(3.) IN Permanand Kumar vs. Bhon Lohar (5) it is pointed out that an order of remand under sec. 151 is appealable only when it amounts to a decree. Where the order of remand merely sets aside a decree of the trial court and does not itself decide any of the points raised for determination, and does not determine the rights of the parties with regard to any of the matters in controversy in the suit, it cannot amount to a decree and must be treated as an order, and to appeal would lie against it as a decree The mere fact that the order reverses the decree of the trial court and deprives the plaintiff of the valuable right acquired thereunder would not make the order of remand a decree, unless that order itself determines any of the points arising for determination in regard to the matters in controversy in this suit. If we may say so with respect, this is the right view to take, where the first appellate court reverse the decree and also decides some points in controversy and sends back the case for further trial, there is a decree clearly within the meaning of sec. 2 (2) of the Civil Procedure Code. Learned counsel for the plaintiff relies on Chanmalswami Rudraswami vs. Ganga-dharappa Baslignappa (6 ). In that case it was held that a decision as to misjoinder, limita-tion or jurisdiction does not amount to a preliminary decree within the meaning of sec. 97, and therefore a decision in favour of the plaintiff upon a preliminary defence that the matters in dispute were outside the jurisdiction of civil courts does not amount to a preliminary decree from which the unsuccessful party must at once appeal by reason of sec. 97 of the Code. That was however the case of a suit which remained pending after the decision of the preliminary issue of jurisdiction. The position in the case before up is different, and relates to an appeal which has been finally decided and does not remain pending before the first appellate court. We agree with respect with view taken in that case; but are opinion that the facts of that case being different, it has no application to the facts of the case before us. The next case on which learned counsel for the plaintiff relied is Baliram Ganpatrao Bhoot vs. Manohar Damodhar Bhoot (1 ). The question referred to the Full Bench in that case was with respect to the meaning of the words "formal expression of an adjudication" appearing in sec. 2 (2) of the Code of Civil Procedure. The facts of that case were that there was a suit by a lambardar against a co-sharer. Certain preliminary issues were framed, and the trial court decided these issues first against the defendant and then proceeded with the trial of the suit. There was an appeal by the defendant, and the first appellate court held that the findings did not amount to a decree and dismissed the appeal. The matter was then taken in revision to the High Court, and the Full Bench decided that the finding on preliminary issues by the trial court did not amount to a decree because it was not a 'formal expression of an adjudication' within the meaning of sec. 2 (2 ). This case, in our opinion, is of the same kind as the case of Chanmalswami Rudraswami vs. Gangadharappa Baslingappa (6) referred to above. In that case also it was the trial court which had decided certain preliminary issues, and the suit remained pending. In the case before us however the first appellate court has decided one issue, and the decision of the trial court has been reversed, and the appeal is no longer pending before the first appellate court. These circum-stances are entirely different, and the view taken therefore in that case does not apply to the facts of the present case. An earlier decision of the Nagpur High Court in Sheolal Balmukund vs. Jugal Kishore (7) was referred to in that case, but was not overruled. In that earlier case, the Nagpur High Court held that no appeal lay from an order of remand unless it fell under O. 41, r. 23, or unless it could be sold to amount to a decree within the meaning of sec. 2 (2 ). The last case, to which reference may be made, is Mst. Chauli alias Subhadra Devi vs. Mst Meghoo (8 ). In that case, the learned Judges were considering whether on a remand under O. 41, r. 25, the court making the remand is bound by the earlier findings on some of the issues. It was held that though the parties have no right to agitate the matter further, the finding in such circumstances is not binding, if the learned Judges hearing the case a second time think that there are special reasons why the previous opinion should be reconsidered. The same view has been taken by this Court in Mst. Govindi vs. Chhagan lal (9 ). But these cases, in our opinion, do not apply to the facts of the present case The refer or a situation where the appeal is still pending and there is a remand as provided by O. 41, r. 25. But where the appeal is also disposed of, O. 41, r. 25 has no application. These cases, therefore, have no application to the facts of the present case. It may be that in this case first appellate court could have acted under O. 41, r. 25 inasmuch as the issue of limitation had not been framed, and might have kept the appeal pending and called for a finding from the trial court on the issue of limitation. In such a case there would have been no decree, and no second appeal would lie to this Court, But what the first appellate court did in the case before us was to decide one of the point finally and set aside the decree of the trial court, and sent the case back for trial. The decision on one of the matters in controversy was, therefore, final, and it would not be open to the first appellate court to review that decision. In these circumstances, when the first appellate court also gives formal expression to its decision by framing a decree, there would be a right of second appeal to this Court. The conclusion, at which, therefore, we arrive, on a review of these authorities, is that where an appellate court completely disposes of an appeal, and frames a decree in accordance with such disposal, and decides some of the matters in controversy in the suit conclusively and then orders a retrial or a remand, the decision amounts to a decree within the meaning of sec. 2 (2) of the Code of Civil Procedure, in as much as there is a formal expression of an adjudication which so far as regards the court expressing it, conclusively determines the rights of the paries with regard to some of the matters in controversy in the suit. This is exactly what has been done by the first appellate court, and we are, therefore, of opinion that a second appeal lies to this Court. Learned Counsel for the respondent submits that if this is the right view there was no necessity of providing an appeal from an order of remand under O. 41, r. 23 by a special provision in O. 43, r. 1 (u ). There is no doubt that an order of remand under O. 41, r. 23, in as much as it reverses the decree of the trial court, which is based on the decision of a preliminary point, may amount to a decree within the meaning of sec. 2 (2) of the Code of Civil Procedure as interpreted by us, provided that there is a formal expression of the adjudication made by the court. It was urged that this provision would be redundant in the view that we have taken, and the fact that this provision is there shows that an order of remand can, under no circumstances amount to a decree. We cannot accept this contention. It seems to us that a special provision was made for appeal under O. 43, r. 1 (u) in cases of orders under O. 41, r. 23 perhaps to avoid payment of full court fee. It is because of this special provision in O. 43, r. 1 (u) that it is possible for parties to appeal against an order under O. 41, r. 23 on a fixed court fee of a few rupees. In the view that we have taken, an order under O. 41, r. 23 can amount to a decree if there is a formal expression of adjudication also; but in the absence of this special provision full court fee would have to be paid as on a decree. It may be that the legislature thought that this special provision should be made to save parties from having to pay full court fee in the peculiar cases under O. 41, r. 23. In any case, presence of this special provision cannot, in our opinion, make any difference to the interpretation of sec. 2 (2) of the Code of Civil Procedure when that interpretation is quite clear. ;