Wanchoo, C. J. - (1.) IN this case a reference has been made by a learned single Judge, and two questions have been referred to a larger Bench for reply, namely - (1) Whether an order of remand made by an appellate court would be covered by O. 41, r. 23 of the Civil Procedure Code even though 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 O. 41. r. 23 would lie under O. 43, r. 1 even though the order is not strictly covered by the first provision ?
(2.) THE facts, which have led to this reference, may be briefly narrated. A suit was brought by Ratanraj for recovery of certain sum of money on the basis of a khata said to have been executed by the defendant Kripa Shanker and his brother who was father of other defendants in favour of the plaintiffs. THE suit was resisted, and among other grounds the defendants pleaded that the document, on which the suit was founded, was inadmissible in evidence as it was an acknowledgment, and was not stamped. Three issues were framed by the trial court, and one of them was whether the document sued upon was admissible in evidence even though unstamped. THE trial court held that the document, on which the suit was founded, was inadmissible, and therefore dismissed the suit. THEre was an appeal by the plaintiff. THE first appellate court also agreed with the trial court that the document was inadmissible in evidence, but it remanded the suit on the ground that as the trial court had not gone into other issues, it should now decide whether the plaintiff could lead oral evidence with regard to giving of the loan. THEreupon there was an appeal to this Court under O. XLIII, r. 1. In the meantime, the plaintiff had applied for refund of court fee to the first appellate court, and that court ordered refund holding that the remand was under O. XLI, r. 23 It may be mentioned that the appeal in this case was filed after the order of refund. A preliminary objection was taken by the respondents that no appeal lay under O. XLIII. r. 1 as the remand in this case was not covered by the term of O. XLI, r. 23. These two questions have been referred in connection with this preliminary objection. We begin with the first question put to us. The relevant part of O. XLI, R. 23 is 'where a court 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. . . . . . . . . . . . 'the contention on behalf of the plaintiff is that under O. XLI, r. 23, all that is to be seen is (1) whether the trial court has disposed of the suit upon a preliminary point, and (2)whether the first appellate court has reversed the decree and that it is not necessary to see whether the decision of the trial court on the preliminary point has been reversed or not. We are of opinion that this is taking too literal a view of the provision of O. XLI, r. 23. Where the trial court has decided a suit upon a preliminary point, the appellate court, if it reverses the decree in appeal, must come to a different conclusion on the preliminary point in order to reverse the decree. If it agrees with the trial court about the decision on the preliminary point, it is difficult to see how it can reverse the decree. For example if the trial court dismisses a suit holding it barred by limitation, and does not decide the other issues raised, the appellate court cannot possibly reverse the decree unless it reverses the decision on the preliminary point of limitation. We are, therefore, of opinion that the decision of the trial court on the preliminary point must be reversed in order to enable the appellate court to reverse the decree, and it is only then that the applicant court can remand the suit under O. XLI, r. 23. We have not been referred to any direct authority on this point,but a similar view seems to have been taken in Umar Din vs. Umar Hayat (l ). In that case, the trial court had dismissed a suit after deciding only two out of many issues. The first appellate court remanded the suit under O. XLI, r. 23, without giving any decision on the two issues decided by the trial court. The reason it gave for remanding the suit was that finding should be recorded on all the issues. In second appeal, the High Court held that the order of the District Judge remanding the suit was wrong. It appeared that the decision of the two issues, which were decided by the trial court, went to the root of the case, and if the decision of the trial court as to them was upheld the appeal must be dismissed. The High Court took the view that the District Judge could not remand the suit until it upset the decision of the trial court on the two issues. Our answer to the first question there fore is that an order of remand made by an appellate court would not be covered by O. XLI, r. 23 of the Civil Procedure Code unless the decision of the trial court on the preliminary point on which the suit is decided is reversed. Then we come to the second question which is of greater complexity. We are asked whether an appeal would lie under O. XLIII, r. 1 even though the order of the first appeal-late court is not strictly covered by the terms of O. XLI, r. 23, and merely purports to have been made under the provision. Now O. XLIII, r. l (u) definitely provides an appeal against an order under r. 23 of O. XLI, where an appeal would lie form the decree of the appellate court. This can only mean that an appeal under O. XLIII, r. 1 is competent provided the order in appeal is one which comes under O. XLI, R 23. There may be a number of possibilities in this connection. The appellate court may have said expressly in its order of remand that it was being made under O. XLI, R. 23. In such a case, an appeal would lie under O. XLIII, r. 1, irrespective of whether it was right on the part of the appellate court to make a remand under O. XLI, r. 23. We may in this connection refer to Mool Raj vs. Narsingh Das (2) where it was held that the right of appeal does not depend on what the court ought to have done but on what it actually did. The second possibility is that though the court does not expressly say that the order of remand is under O. XLI, r. 23 it passes some order which leads to the necessary inference that the order of remand must have been under O. XLI, r. 23. Such an order, for example, is an order for refund of court fees. If, therefore, the first appellate court, while making an order of remand, also passes an order for refund of court fees, it necessarily follows that it must be remanding the case under O. XLI, r. 23, for a refund is possible only when the remand is under that provision. Such an order of refund may be made either along with the order of refund or afterwards. Even if it is made afterwards, but before an appeal is filed in the High Court, the party filing the appeal can say that the order of the first appellate court was under O. XLI, r. 23 because it has already passed an order of refund. In such a case also we are of opinion that an appeal would lie under O. XLIII, r. 1 because the order of the court, whether right or wrong, was made under O. XLI, R. 23, as would be clear from the order of refund of court fee. The present case is of this kind. The order of remand was first passed. Then followed the order of refund of court fee on the 2nd of December, 1952. The appeal in this Court was actually filed on the 10th of February, 1953. As such the appellant can say that the court having passed an order of refund of court fee, it passed the order under appeal under O. XLI, r. 23, though it did not actually say so in the order itself. We are not unmindful in this connection of the decision in Sheolal Balmukand vs. Jugal Kishore (3 ). In that case it was held that it was impossible to hold that an order of remand which did not and could not fall within the purview of O. XLI, r. 23 must nevertheless be deemed to have been one under it simply because the Judge purported to act in accordance with this provision. If we may say so with respect this case overlooks the principle that the right of appeal depends on what the court actually does and not on what it ought to have done. Where, therefore, the order of remand specifically mentions O. XLI, r. 23 or at some time orders refund to court fee, or there is another order of refund of court fee soon after but before the appeal is filed in the High Court, we are of opinion that any party can appeal under O. XLIII, r. 1, for in such a case the order of remand must be held to be an order under O. XLI, r. 23. Then we come to the last case, namely where the court does not mention that the order of remand is under O. XLI, r. 23, and the order of refund is passed after the appeal in the High Court or is never passed. In such a case it is for the High Court to decide whether the order in question rightly comes within O. XLI, r. 23. If it does, an appeal will lie under O. XLIII. r. 1, but if it does not, no appeal will lie under O. XLIII. r. l. Our answer, therefore, to the second question is that where the order of remand states expressly that it is under O. XLI, r. 23, or where there is an order refunding court fee before the appeal is filed, an appeal would lie under O. XLIII, r. 1, and the order of remand must be treated under O. XLI, r. 23. But if the order of remand does not say in no many words that it is passed under O. XLI, r. 23, nor is there 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 O. XLI, s. 23, and if it is not, no appeal under O. XLIII, r. 1 would lie. We may point out that the present case is of the first kind where an order of refund of court fee was raised before the appeal was filed, and therefore in this parti-cular case an appeal under O. XLIII, r. l would be competent. Let these answers be returned to the Bench concerned. . ;