The Legal Character of Remand Orders in Indian Civil Procedure: When is an Order of Remand a Decree?

The Legal Character of Remand Orders in Indian Civil Procedure: When is an Order of Remand a Decree?

Introduction

The Code of Civil Procedure, 1908 (CPC), provides a comprehensive framework for the conduct of civil litigation in India. Within this framework, the power of an appellate court to remand a case to a lower court for retrial or further consideration is a significant procedural tool. An order of remand, while seemingly straightforward, presents complex legal questions, particularly concerning its characterisation as a 'decree' or an 'order'. This distinction is not merely academic; it carries substantial implications for the rights of litigants, especially concerning the appealability of such orders and their finality. This article undertakes a scholarly analysis of when an order of remand amounts to a decree under Indian law, drawing upon statutory provisions and judicial pronouncements, with particular emphasis on the reference materials provided.

Defining 'Decree' and 'Order' under the Code of Civil Procedure, 1908

To understand the legal status of a remand order, it is imperative to first comprehend the definitions of 'decree' and 'order' as provided in the CPC.

Section 2(2) of the CPC defines a 'decree' as:

"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. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include— (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default."

The essential elements of a decree are, therefore: (i) an adjudication, (ii) such adjudication must have been given in a suit, (iii) it must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit, (iv) such determination must be of a conclusive nature, and (v) there must be a formal expression of such adjudication.

In contrast, Section 2(14) of the CPC defines an 'order' as "the formal expression of any decision of a Civil Court which is not a decree." This definition is residual; any adjudication that does not satisfy the requisites of a decree is an order.

The Nature and Purpose of an Order of Remand

An order of remand essentially means to send back a case from an appellate court to the lower court for retrial or further proceedings in accordance with the directions of the appellate court. The primary objective of remand is to ensure that justice is done by enabling a complete and proper adjudication of the dispute, especially where the lower court has erred on a preliminary point, failed to consider essential issues, or where further evidence is necessary.

Types of Remand Orders

The CPC envisages different circumstances under which an appellate court may remand a case:

  • Remand under Order 41 Rule 23 CPC: This applies when the trial court has disposed of the suit upon a preliminary point, and that decree is reversed in appeal. The appellate court may then remand the case for trial on other issues.
  • Remand under Order 41 Rule 23A CPC: Inserted by the CPC (Amendment) Act, 1976, this rule empowers the appellate court to remand a case even if the suit was disposed of otherwise than on a preliminary point, provided the decree is reversed in appeal and a retrial is considered necessary (Pasala Krishna Murthy v. Adaka Kotaiah (Died), Andhra Pradesh High Court, 2022).
  • Remand under Order 41 Rule 25 CPC: If the appellate court finds that the trial court has omitted to frame or try any issue, or to determine any question of fact, which appears essential for the right decision of the suit upon the merits, it may frame issues and refer them for trial to the court from whose decree the appeal is preferred (Ambika Yadav v. Ganesh Prasad Mishra, Patna High Court, 2015). This is not a remand of the entire case in the strict sense but a reference for findings on specific issues.
  • Remand in Exercise of Inherent Powers (Section 151 CPC): Courts have also exercised inherent powers under Section 151 CPC to remand cases in situations not explicitly covered by Order 41, to meet the ends of justice or prevent abuse of the process of the court. However, with the insertion of Rule 23A, the scope for invoking inherent powers for remand has been considerably narrowed (Dinamani Debi v. Paramananda Choudhury And Another Opp Parties., 1980 SCC ONLINE ORI 126, Orissa High Court, 1980).

When Does an Order of Remand Constitute a 'Decree'?

The central question is under what circumstances an order of remand transcends its typical nature as an 'order' and acquires the characteristics of a 'decree'. The answer lies in the application of the definition of 'decree' under Section 2(2) CPC to the specific contents and effect of the remand order.

The Litmus Test: Conclusive Determination of Rights

The cornerstone for an order of remand to be treated as a decree is that it must conclusively determine the rights of the parties with regard to all or any of the matters in controversy in the suit. Merely setting aside the decree of the trial court and directing a retrial, without any conclusive adjudication on substantive rights, does not elevate a remand order to the status of a decree.

Judicial Interpretation and Key Precedents

Indian judiciary has extensively deliberated on this issue. In Dinamani Debi v. Paramananda Choudhury And Another Opp Parties. (1980 SCC ONLINE ORI 126, Orissa High Court, 1980), a Full Bench clarified that an order of remand under Section 151 CPC (prior to the expansive scope of Order 41 Rule 23A) is appealable only when it amounts to a decree. The Court held:

"Where the order of remand merely sets aside the 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. The mere fact that the order reverses the decree of the Trial Court and deprives a party of the valuable right it had acquired thereunder would not make an 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 the suit." (Dinamani Debi, citing Manaklal v. Madanlal, Rajasthan High Court, 1954, which in turn cited Permanand Kumar v. Bhon Lohar, 1926 SCC ONLINE PAT 53, Patna High Court, 1926).

This principle was echoed in Mrigendra Kumar Majumdar And Others v. Sidheshwar Shit And Others (1965 SCC ONLINE CAL 49, Calcutta High Court, 1965), where the court observed that a remand under Section 151 CPC, which did not fully decide or conclusively determine anything on the merits but left the entire matter for the trial court, could not be held to be a decree. The mere fact that the trial court's decree was set aside was insufficient. Similar views were expressed in Bhagwandas v. The Board Of Revenue And Ors. (Rajasthan High Court, 1978) and Lachman Dass Bhatia v. Assistant Commissioner Of Income (Delhi High Court, 2010), both affirming that if the appellate court, in passing the order of remand, did not conclusively determine anything on the merits of any of the disputes and left the entire matter for decision to the trial court, such an order is not a decree.

Conversely, if the appellate court, while remanding the case, also decides some points in controversy conclusively, that part of the order which embodies such conclusive determination may amount to a decree (Manaklal v. Madanlal, Rajasthan High Court, 1954). For instance, if an appellate court determines the question of jurisdiction or limitation conclusively and then remands the suit for trial on merits, the decision on jurisdiction or limitation could be a decree.

The Supreme Court in Satyadhyan Ghosal And Others v. Deorajin Debi (Smt) And Another (1960 AIR SC 941) dealt with an order of remand which was considered interlocutory but did not terminate the proceedings. The Court held that such an order could be challenged in an appeal from the final decree. This implies that not all remand orders conclusively determine rights in a manner that they become immediately appealable as decrees, distinct from orders appealable under Order 43. The Court distinguished between interlocutory judgments that terminate proceedings (and thus become res judicata) and those that do not. An order of remand was deemed interlocutory but did not terminate the main proceedings, allowing it to be challenged in an appeal from the final decree or order.

Appealability of Remand Orders

The appealability of a remand order depends on its nature and the specific provision under which it is made.

Appeals under Order 43 Rule 1(u) CPC

Order 43 Rule 1(u) CPC specifically provides for an appeal from an order of remand made under Order 41 Rule 23 or Order 41 Rule 23A CPC. Such appeals are in the nature of appeals from orders (Miscellaneous Appeals). The scope of such appeals was clarified by the Supreme Court in Narayanan v. Kumaran And Others (2004 SCC 4 26). The Court held that appeals under Order 43 Rule 1(u) CPC should be confined to the grounds enumerated in Section 100 CPC, i.e., they must involve a substantial question of law. The High Court, in such appeals, should not revisit factual determinations made by the lower appellate court unless a substantial legal question necessitates such scrutiny. This aligns the scope of such miscellaneous appeals with that of second appeals.

Appeals against Remand Orders Amounting to a Decree

If an order of remand, particularly one made under inherent powers (Section 151 CPC) or even one under Order 41 Rules 23/23A that also conclusively determines rights on certain matters in controversy, qualifies as a 'decree' under Section 2(2) CPC, it would be appealable as such under Section 96 CPC (if it's from an original proceeding in the appellate court, which is rare for remands) or, more commonly, subject to a second appeal under Section 100 CPC if it is passed by a first appellate court and involves a substantial question of law.

Consequences of Not Appealing an Appealable Remand Order

Section 105(2) CPC provides that where any party aggrieved by an order of remand from which an appeal lies (i.e., under Order 43 Rule 1(u) or as a decree) does not appeal therefrom, they shall thereafter be precluded from disputing its correctness in any subsequent appeal from the final decree. This underscores the importance of challenging an erroneous remand order at the appropriate stage. The Madras High Court in Kota Kanakayya And Another v. Kamepalli Lakshmayya And Others. (1949 SCC ONLINE MAD 377) discussed this provision, highlighting that a party aggrieved by an order of remand who fails to appeal against it is barred from challenging its validity in an appeal against the final decree.

Distinction from Other Interlocutory Orders

Remand orders are a species of interlocutory orders, but not all interlocutory orders are remand orders, nor do all share the same characteristics regarding finality or appealability. In Satyadhyan Ghosal, the Supreme Court clarified that an interlocutory order which does not terminate the suit (like the remand order in that case) does not operate as res judicata on points decided therein if those points can be re-agitated in an appeal from the final decree. This is distinct from interlocutory orders that do decide a substantive issue finally between the parties, which might operate as res judicata.

The Supreme Court in Major S.S Khanna v. Brig. F.J Dillon (1964 SCC 4 409), while dealing with the revisional jurisdiction of the High Court under Section 115 CPC, interpreted the term "case" broadly to include parts of proceedings, especially decisions affecting jurisdiction, even if interlocutory. While this pertains to revisional powers, it shows that courts recognize that certain interlocutory decisions can have significant impact. However, for an order to be a 'decree', it must meet the stringent test of Section 2(2) CPC.

The case of Jethanand And Sons v. State Of Uttar Pradesh (1961 SCC 3 754) highlighted that an order remanding cases for retrial is not a "final order" for the purpose of appeal to the Supreme Court under Article 133(1)(c) of the Constitution if it does not raise any question of great public or private importance and leaves questions open to be tried. This again touches upon the aspect of finality and conclusive determination.

Impact of Setting Aside a Remand Order

If an order of remand is successfully challenged and set aside by a higher appellate court, any subsequent proceedings undertaken by the lower court pursuant to that erroneous remand order, including any final decree passed, would consequently fall. As observed in Kota Kanakayya And Another v. Kamepalli Lakshmayya And Others. (1949 SCC ONLINE MAD 377), "the final decree passed in pursuance of a preliminary decree or order of remand in the same suit is subordinate to and dependent on the preliminary decree or the order of remand as the case may be. The appellate Court, if it has seisin of the appeal against a preliminary decree or an order of remand, has power to reverse or modify it and in this manner and to this extent, has also the power to affect the operation of the final decree passed in pursuance thereof."

Analysis of Specific Scenarios Leading to Remand

Courts remand cases for various reasons, and the nature of the remand order can differ accordingly.

  • Remand for Additional Evidence: In Kapilbhai Ishwarbhai Patel v. Dineshbhai Manibhai Patel (Gujarat High Court, 2016), remand was found necessary because certain documents were produced only before the appellate court. The court referred to Order 41 Rule 27 CPC, which governs the production of additional evidence in an appellate court. A remand for taking additional evidence and then deciding the matter afresh would typically be an order, unless the appellate court also conclusively decides certain rights. The Supreme Court in K. Venkataramiah v. A. Seetharama Reddy And Others (1963 AIR SC 1526) affirmed the appellate court's discretion to admit additional evidence if required to pronounce judgment or for any other substantial cause, reinforcing the flexibility available to appellate courts, which may sometimes necessitate a remand.
  • Remand for Non-Consideration of Issues: In cases like Rajendra Kumar v. Prabha Shanker Awasthi (Allahabad High Court, 2015) and Devi Shankar v. Commissioner Faizabad Division Faizabad (Allahabad High Court, 2015), matters were remanded because the appellate court found that certain crucial points were not correctly dealt with or that the judgment was non-speaking on vital aspects. Such remands are generally to ensure proper adjudication and are orders, not decrees, as they direct further inquiry rather than conclusively determining rights.
  • General Principles for Remand: The Supreme Court, as cited in Ambika Yadav v. Ganesh Prasad Mishra (Patna High Court, 2015) referring to Ashwinkumar K. Patel v. Upendra J. Patel ((1999) 3 SCC 161), cautioned that High Courts should not ordinarily remand a case merely because the reasoning of the lower court was found wanting in some respects, especially if the material is available for the appellate court to decide the appeal. Unnecessary remands lead to delays and prejudice. This underscores that remand should be a measure of last resort when proper adjudication is otherwise impossible. Earlier cases like Governor-General In Council v. Piramal Marwari Opposite Party. (Patna High Court, 1947), Kaunsilla (Decree-Holder) v. Ishri Singh (Judgment-Debtor). (Allahabad High Court, 1910), and Subramanya Chettyar v. Padmanabha Chettyar And Ors. (Madras High Court, 1896) illustrate instances where courts remanded proceedings for compliance, re-admission, or disposal according to law, typically involving setting aside the lower court's decree.

Conclusion

The determination of whether an order of remand is a 'decree' under Indian civil jurisprudence hinges critically on the "conclusive determination of rights of the parties with regard to all or any of the matters in controversy in the suit" (Section 2(2) CPC). While remands under Order 41 Rule 23 and Rule 23A CPC are specifically appealable as orders under Order 43 Rule 1(u) CPC (subject to the "substantial question of law" test as per Narayanan v. Kumaran), a remand order made under inherent powers (Section 151 CPC), or even one under Rules 23/23A, can only be treated as a decree if it substantively adjudicates upon and conclusively determines rights on some of the matters in controversy. Merely setting aside the lower court's decision and directing a fresh trial does not suffice (Dinamani Debi; Manaklal). The principles laid down in Satyadhyan Ghosal further clarify that remand orders not terminating proceedings can be challenged in the appeal against the final decree, indicating their generally interlocutory nature unless they fit the specific definition of a decree.

A precise understanding of this distinction is crucial for legal practitioners and courts to navigate the procedural pathways of appeal correctly and to ensure that the principles of finality and judicial efficiency are upheld. The robust body of case law, particularly the consistent view taken by various High Courts and the guiding principles from the Supreme Court, provides a clear, albeit nuanced, framework for characterizing orders of remand in the Indian legal system.