AHMAD HUSAIN Vs. GOBIND KRISHNA NARAIN

JUDGEMENT

(1.) THIS is an application for leave to appeal to His Majesty in Council. The suit out of which the case has arisen was brought by the plaintiffs for recovery of possession of certain property. It was held by the Court of first instance that the suit was barred by the provisions of Section 43 of the Code of Civil Procedure of 1882. Bat upon appeal to this Court the decree of the Court below was set aside and the case was remanded to the Court below on the ground that the suit was not concluded by Section 43 of the former Code, and as the questions of fact had not been determined, the Court below ought to re-admit the suit and decide it on the merits. From this order of remand the present application for leave to appeal to His Majesty in Council is made. We are of opinion that the application for leave to appeal is premature. The order of remand is not in our judgment a decree or final order within the meaning of Section 109 of the present Code of Civil Procedure. In the case of Forbes v. Amir-oon-nissa Begum 10 M.I.A. 340, their Lordships of the Privy Council treated an order of remand as an interlocutory order and held that no appeal lay on the ground that it did not purport to dispose of the cause. Again, in the case of Mahout Ishvargar Budhgar v. Candueeama Amarsang 8 B. 548, the Bombay High Court also held that no appeal lay as a matter of right from an order of remand. Again, in the case of Mazhar Husein v. Musammat Bodha Bibi 17 A. 112, their Lordships of the Privy Council in their judgment, in regard to the question whether or not the practice of this Court to treat orders of remand as not final orders, observe that probably the practice referred to is quite correct. Again, in the case of Radha Kishan v. The Collector of Jaunpur 23 A. 220, in which this High Court passed an order under Section 562 and remanded the case for disposal on the merits. On appeal their Lordships of the Privy Council observe of this order of remand that it is a purely interlocutory order directing procedure. In view of these decisions and of the language of Section 109 of the Code of Civil Procedure which refer to a decree or final order we do not think that the present application is maintainable. The order which has been passed is an interlocutory order and as such, cannot be regarded as a decree or final order within the meaning of the section. It is contended on behalf of the proposed appellants by their learned Advocate that Section 105 of the Code gives the right of appeal in a case such as the present where an order of remand has been passed. That section, after providing for appeals in certain cases, prescribes in Sub-section 2 that where any party aggrieved by an order of remand made after the commencement of the Code from which an appeal lies does not appeal therefrom, he shall, thereafter be precluded from disputing its correctness. THIS section would, no doubt, justify the application which has been made if it were applicable to Privy Council appeals, but, in our judgment, it is not applicable to Privy Council appeals. Such appeals are dealt with in Section 109 and following sections. It is further, we think, manifest from the language of Section 103 that Section 105 does not apply to Privy Council appeals.

(2.) FOR these reasons we reject the application but without costs as the respondents are not represented.