Encouraged by a recent decision of Mack J. in Venkatarama Aiyar v. Unnamalai Amma(1) Mr. V. Suryanarayana, the learned Counsel for the respondents, raised a preliminary objection to the hearing of this appeal against an order of remand passed by the lower appellate Court under O. 41, R. 23, Civil Procedure Code. The argument is that the order of remand has been carried out and the suit decided and the remedy of the defendants, here appellants, is only by way of an appeal from the final decree. It is urged that this appeal against the order of remand has to be dismissed on that ground as was done by Mack J. in the case above cited and for the same reasons. While I appreciate the vigour of the judgment of my learned brother I venture, with respect, to think that, as an expression of legal principle, it is far from convincing. As I differ from his judgment it is my duty and I shall endeavour to state as clearly as I can, the reasons which have compelled me to come to a different conclusion.

Under the Civil Procedure Code of 1882 there was no provision for the passing of a preliminary decree and no adjudication came within the definition of a decree unless it decided the suit. S. 2(2) Civil Procedure Code of 1908 provided for the passing of a preliminary decree which determined the rights of parties with regard to all or any of the matters in controversy in the suit though it did not completely dispose of the suit. S. 97 of the Code of 1908 provided that if a party aggrieved by a preliminary decree did not appeal from it, he would be precluded from disputing its correctness in any appeal which might be preferred from the final decree. S. 562 of the Civil Procedure Code of 1882 empowered an appellate Court to remand a suit which had been disposed of on a preliminary point by the trial Court, if the appellate Court found the decision of the trial Court to be erroneous. S. 588, Cl. (28) Civil Procedure Code of 1882 gave a right of appeal against an order of remand. Under the Code of 1882 it bad been held by Courts that a party aggrieved by an order of remand could object to its validity in an appeal against the final decree though he might have appealed against the order of remand under S. 588, Cl. 28 but had not done so. Subba Sastri v. Balachandra Sastri, There was also a dissent from this view in Subbalakshmamma v. Venkatarayudu(2). When the Civil Procedure Code of 1908 was enacted, the legislature reproduced with slight variations the old Ss. 562 and 588, Cl. (28) Civil Procedure Code of 1882 in O. 42, R. 23 and O. 43, R. 1 Cl. (u) respectively, of the new Code, and also added a new provision in S. 105(2) precluding an appellant from taking on an appeal from the final decree any objection that might have been urged by way of an appeal from an order of remand. The Madras High Court in the exercise of its rule-making powers amended O. 41, R. 23 Civil Procedure Code, so as to empower an appellate Court to remand a suit even in a case where the trial Court had not disposed of it on a preliminary point. By the amendment, this Court put an end to the interminable controversy that raged round orders of remand, whether they were passed under O. 41, R. 23 Civil Procedure Code, or under the inherent powers of the Court, on the decision of which point depended the appealability of such orders. Suffice it to say that in Madras all orders of remand are now appealable under O. 43, R. 1, Cl. (u) Civil Procedure Code in all cases where an appeal would lie against the decree of the appellate Court. This resume of the history of legislation has been rendered necessary by the reliance placed by Mack J. on certain decisions of the Calcutta High Court given before the coming into force of the Civil Procedure Code of 1908.

The Civil Procedure Code of 1908 not only gives an aggrieved party a right of appeal against a preliminary decree or an order of remand in a case where the decree of the appellate Court would have been open to appeal but also imposes this serious disability on a litigant that if he does not prefer an appeal against the preliminary decree or an order of remand, he is thereafter precluded from disputing its correctness in an appeal from the final decree. There is no provision anywhere in the Code that takes away the right of a party to appeal from a preliminary decree or an order of remand, if a final decree happens to be passed in the suit before the appeal against the preliminary decree or the order of remand is presented. Nor is there any provision in the Code, that an appeal against a preliminary decree or an order of remand properly presented becomes defunct by the passing of a final decree pending the appeal. I am unable to accept the dictum of Mack J. that “it is necessary that these wide privileges of appeal should be exercised within the limits of reason and practicality”, the limits being, evidently, those prescribed by learned Judges according to their own notions of what is reasonable or practical. In my opinion, it is not legitimate for a Court to read into the statutory provisions granting a right of appeal, limitations and disabilities which the legislature has not thought fit to insert. Abrogation of a right of appeal given by statute cannot be imported by Courts for reasons founded on practical convenience. A right of appeal which is a substantial right conferred by statute, is not to be put in peril merely because the purpose of granting a right of appeal, does not appeal to the predilection of the Court. Mack J. observes that “the cycle of appeals, the law permits in India, have (sic) no parallel in the juristic history of any other country”. I am not so sure about this but in any case, it is a problem for the legislature and is not to be solved by judicial abrogation of rights conferred by statutory enactments.

I proceed to consider the other reasons given in support of his conclusion by Mack J. The learned Judge observed that he would have entertained the appeal against the order of remand though it was filed after the final decree had been passed, “had the appellant signified his intention of appealing against the order of remand by applying for stay and had stay been refused—a most unlikely contingency”. I am unable, with respect, to see the point of this observation. The learned Judge evidently, meant—indeed it is so stated in his judgment—that the appellant should have signified to the lower appellate Court his intention of appealing against the order of remand or applied to it for a stay of further proceedings. The lower appellate Court was functus officio when it passed the order of remand. There is no provision in the Civil Procedure Code similar to O. 41, R. 6 empowering the lower appellate Court to stay the trial of a suit remanded by it. Even in appeals against orders of remand preferred to the High Court, stay of further trial cannot be had as of right. Onerous conditions may be imposed which an appellant might not find it possible to comply with. The maintainability of an appeal against an order of remand should not in my opinion, be made to depend on the grant or refusal of stay of further trial in the exercise of a Court's discretion.

Mack J. further holds that if a person wants to avail himself of the privilege of appealing against an order of remand he must do so before the final decree is passed. If he does not prefer an appeal betimes and obtain an order for stay of trial but submits, without protest, to the trial which ends in a decree, “he must be deemed to have accepted the new basis and submitted to a fresh trial on that footing.” Thereafter, it is not open to him to “undermine” the basis of the order of remand by an appeal from that order or from the final decree in the suit. His only remedy is to file an appeal from the final decree if he has any grievance against that decree. So runs the argument. O. 43, R. 1, clause (u) does not say that an order of remand shall be appealable only if the case had not been finally determined by the trial Court before the date of the filing of the appeal. Nor does it say that an appeal filed against an order of remand becomes infructuous if a final decree happens to be passed during its pendency. It is not permissible for a Court to import into the provisions of O. 43, R. 1, clause (u) a limitation which is not there found either in express terms or by necessary implication. It is all the more objectionable to import such a limitation in the face of the stringent provision in S. 105 clause (2) Civil Procedure Code which precludes a party from questioning the propriety of an order of remand except on an appeal preferred against that order. The result of the Calcutta decisions relied upon by Mack J. as being good law, even under the Civil Procedure Code of 1908, would be that if a party, without any fault of his own, is unable to appeal against the order of remand before the final decree on remand is passed, he would lose all opportunity of ever objecting to that order and at the same time be deprived of the rights of appeal expressly conferred by O. 43, R. 1, clause (u) Civil Procedure Code. There might be delay in the grant of certified copies for filing an appeal against an order of remand. The trial Court or the appellate Court might refuse a stay of trial and the final decree in the suit might happen to be passed before the appeal from the order of remand is filed or is heard. In my opinion, it is erroneous to hold that the right of appeal given by O. 43, R. 1(u) against an order of remand is taken away or nullified by the passing of a final decree in the suit. An order of remand has an independent existence and is not submerged or dissolved in the final decree. A separate right of appeal is provided against such an order. Not only is a right of appeal provided by O. 43, R. 1, clause (u) but an obligation is cast by S. 105(2) Civil Procedure Code upon a person dissatisfied with an order of remand to appeal against it on pain of losing his right to object to the propriety or the correctness of the order or the findings on which it is based in the later stages of the litigation.

It might happen that a person has no objection to the final decree provided the order of remand was right and his only objection may be to the order of remand itself. In so far as the final decree is consequential upon or merely carries out the directions contained in the order of remand, there is no reason why a litigant should put himself to the expense and trouble of appealing against the final decree when O. 43, R. 1, clause (u) gives him a right of appeal against the order of remand, especially when in the appeal against the final decree he could not be heard to impugn the correctness of the order of remand by reason of the bar imposed by S. 105(2) Civil Procedure Code. An appeal against an order of remand or against a preliminary decree, would, if allowed, make an appeal against the final decree on the same grounds quite unnecessary. The further trial after remand depends on the validity of the order of remand and if that order is set aside on appeal the final decree and indeed, all the proceedings taken under the remand order, would fall with it. I am aware that the doctrine, that subordinate and dependent decrees came to nothing when the decree on which they are dependent is set aside, should not be extended so as to operate beyond the different stages of the same suit or proceeding in view of the decision of the Judicial Committee in Naganna Naidu v. Venkatappayya, But 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.

There is only one other aspect of the matter that has to be mentioned. Mack, J., following the Calcutta decisions referred to in his judgment holds that the party affected by an order of remand must make his election as to the remedy he desires to pursue and if instead of appealing forthwith against the order of remand and applying for stay of trial, he chooses to allow the trial to go on and end in a final decree, he cannot thereafter turn round and “undermine” the order of remand by presenting an appeal against it. I regret my inability to follow this reasoning. There is no question here of choosing one of two inconsistent remedies. As already stated the further proceedings under the order of remand might go on in the trial Court either because a party has not had sufficient time to file an appeal and obtain an order for a stay or because a stay of trial has been refused. Is it to be said in such a case that the party who attends the further trial of the suit without allowing the case to go for default against him takes his stand on it and precludes himself from appealing against the order of remand if the final decree happens to be passed? The trial after remand takes place pursuant to the direction of the appellate Court remanding the case without any reference to the inclinations of the parties. It is news to me that a person who pays the amount or surrenders possession of the property decreed precludes himself from appealing against the decree and yet this is what the argument for the respondents comes to-There is no question here of a choice between alternative and inconsistent or mutually exclusive remedies; the litigant has a right of appeal against an order of remand; he has a right also to contest the proceedings taken in the trial Court pursuant to the order of remand; these are independent legal rights and the exercise of one such right is no bar to the exercise of the other. The aggrieved party is not even faced with alternative rights; it is the same right that he wishes to agitate both in the appeal against the order of remand and at the further stages of the trial after the remand. He has not lost his right to have an appeal against an order of remand merely because he has contested the litigation in the lower Court after the remand.

I have so far discussed the matter with reference to the language of S. 105 clause (2) and O. 43, R. 1, clause (u), Civil Procedure Code and the general principles of law applicable to the case. I now turn to the authorities. In Lakshmi v. Marudevi, it was held by Sundara Aiyar and Phillips JJ. that an appeal against an order of remand could be filed and heard even though a final decree consequential on the remand order had been passed. The learned Judges pointed out that a right or jurisdiction conferred by Statute could not be taken away or cut down except by express words or by necessary implication. They also held that if the order of remand was reversed on the appeal preferred against it, the subsequent decree or order which depended for its validity on the earlier order of remand would ipso facto cease to have any force. The previous decisions of this Court as well as three of the four decisions of the Calcutta High Court relied upon by Mack J. were all considered by the learned Judges before they arrived at a conclusion contrary to that reached by Mack J. The decision in Lakshmi v. Marudevi, was followed by another Bench of this Court in Ramuvien v. Veerappudayan where again the learned Judges declined to adopt the view of the Calcutta High Court and held that the right of a party to prefer an appeal against a preliminary decree was not lost by reason of the passing of a final decree before the appeal was presented. I do not see any difference between a preliminary decree and an order of remand so far as this question of appealability is concerned. In Manicka Pillai v. Mahudam Bathummal(3), Wallace J. held in revision under S. 115 Civil Procedure Code that it was competent to this Court to set aside an order of the lower Court setting aside the dismissal of a suit for default of appearance of the plaintiff, even though the suit had been tried and decreed by the trial Court after the date of the order setting aside the dismissal for default. Perhaps I would not have exercised my discretion in the same way as the learned Judge in the circumstances of that case. The decision, however, is an authority on the point that where an order is brought before this Court in revision or appeal, the mere fact that further proceedings have gone on in the Court below and have resulted in a final decree or order would not stand in the way of this Court interfering in revision or on appeal with the order brought up before it. If the High Court reverses the order of the lower Court the subsequent proceedings conducted in the trial Court which depend for their validity on the order which is set aside by this Court would also cease to have operation or legal effect. In Arunachala Iyer v. Louis Dreyfus and Co.(4), Ramesam and Cornish JJ. followed Ramuvien v. Veerappudayan, and observed that “it has always been held in this Court that an appeal against a preliminary order if allowed makes an appeal against a final order on the same grounds unnecessary though another appeal may have to be filed if it has reference to what happened after the preliminary order was passed.” In Sundaram Chettiar v. Valliammal(5), Beasley C.J and King J. followed the principle of the decisions in Lakshmi v. Marudevi, and Ramuvien v. Veerappudayan, and held that it was competent to a Division Bench of this Court hearing an appeal under clause 15 of the Letters Patent from an order of a single Judge declining to grant unconditional leave to defend a suit filed under the summary chapter of the Original Side Rules, to grant a stay of execution of the decree passed pursuant to the order declining to grant unconditional leave to defend. The learned Judges acted on the view that if the order refusing to grant unconditional leave to defend was found to be erroneous and was set aside on appeal, the result would be to render the decree passed as a consequence of the refusal of leave to defend ineffective, even though the decree itself had not been appealed against. The decisions of this Court cited above are birding upon me as they were binding on Mack J. I would have directed the papers in this case to be placed before His Lordship the Chief Justice for directions as to the case being posted before a Division Bench if I entertained any doubt about the correctness of the previous decisions of this Court or the legal principles applicable to the case. I follow the previous decisions of this Court cited above and I regretfully differ from the rulling of Mack J. in Venkatarama Aiyar v. Unnamalai Ammal.

The decisions of the Calcutta High Court on some of which Mack J. purported to rely are by no means unanimous in their statement of the principle underlying their conclusion. In Jatinga Valley Tea Co., v. Chera Tea Co., which was an appeal against an order of remand, the High Court set aside an order of remand even though the suit had been tried and dismissed after the date of the order of remand. The Court held that the proceedings taken by the Court of first instance after the remand and pending the hearing of the appeal fell with the reversal of the order of remand by the High Court. Twenty years later came the decision in Madhusudhan Sen v. Kaminikanta Sen relied upon by Mack J. The Court held that if a party decided to avail himself of the privilege conferred by S. 588(28) [corresponding to O. 43, R. (1) clause (u)] in relation to an order of remand, he ought to do so before the final disposal of the suit. It was further held that if the suit was disposed of, his only remedy was to appeal from the final decree in the suit. The decision in Madhusudan Sen v. Kaminikanta Sen was also applied by the Calcutta High Court to appeals from preliminary decrees preferred after the passing of final decree. It is unnecessary to examine the later Calcutta decisions relied upon by Mack J. in view of the Full Bench decision of five Judges in Taleb Ali v. Abdul Azeez, holding that an appeal from a preliminary decree was competent even if a final decree had been made before the appeal was presented. It was further held that it was unnecessary for a party aggrieved by a preliminary decree to appeal both from that decree and against the final decree subsequently passed in order to maintain his appeal against the preliminary decree. This decision was perhaps not brought to the notice of my learned brother. I consider that the same rule should apply to an appeal against an order of remand.

A Full Bench of the Allahabad High Court dissented from the decisions of the Calcutta High Court relied upon by Mack J. and held in Uman Kunwari v. Jarbandhan that the fact the suit had been decided by the Court of first instance in compliance with an order of remand made under S. 562 Civil Procedure Code (O. 41, R. 23) was no bar to the filing of an appeal from an order of remand or to the hearing of such an appeal. In so doing, the learned Judges of the Full Bench followed the opinion of Edge C.J in Rameshar Singh v. Sheodin Singh(6). Yet another Full Bench of the Allahabad High Court took the same view in Kanhaiyalal v. Tirbeni Sahai(7). The principle of these decisions is that where an order of remand is appealed against and that order set aside on appeal, the subsequent proceedings conducted in pursuance of the order of remand are considered to be subordinate and dependent proceedings liable to be superseded by the reversal of the order of remand which was the subject matter of appeal before the superior tribunal. In Gurmukh Singh v. Shiv Ram(8), in Wahidunnissa v. Dip Narain Pershad(9), in Basawant Mallappa Neje… v. Kallappa Virbhadrappa Kotiwale….(10), and in Madharao v. Eknathrao(11) the other High Courts have taken the same view as this Court in Lakshmi v. Marudevi(12). I am not prepared to disturb this settled rule.

On the merits I am of the opinion that the order of the lower appellate Court is perfectly justified in view of the wide language of O. 41, R. 23 C.P.C as amended in Madras. S. 123 of the Transfer of Property Act requires that a gift of immoveable property must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. S. 68 of the Indian Evidence Act requires that a document required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. There was an issue raised after the remand as to whether the deed of gift was properly and validly executed. The learned District Munsif was of the opinion that the deed of gift did not require to be proved by the evidence of any attestor and that the evidence of the donee herself was sufficient to prove the deed of gift. Evidently this erroneous view of the learned District Munsif influenced the course of the trial and the necessary evidence required by law was not placed before the Court. It must here be observed that no plea as regards the invalidity of the execution of the gift deed was raised when the suit was originally tried or on appeal when the order of remand was made. It is only among the issues raised in the suit after the order of remand that an issue as regards the validity of the gift was framed. In these circumstances it seems to me that the plaintiffs were misled by the absence of any specific plea in the written statement filed by the defendants, though having regard to the frame of the issue, the burden was cast upon them of proving—the due execution of the gift deed. I hold that the appellate Court was justified in remanding the case for trial on issue (3) as regards the validity of the execution of the gift deed.

I therefore confirm the decision of the lower appellate Court and dismiss this civil miscellaneous appeal with costs. No leave.

N.R.R