1. In this case the appellants are aggrieved by an order in the following terms:
“Let the appeal be allowed and the judgment of the Court below be discharged. The suit be remanded to the Original Court for a fresh trial in view of the above remarks. Parties be allowed to call fresh evidence no order as to costs.”
2. It is suggested by the learned vakil for the appellants that inasmuch as this order was clearly not made under O. 41, R. 25, it must be held to have been made under O. 41, R. 23, and that therefore an appeal lies against it. This argument in our view seems to lose sight of the decision in the case of Abdul Karim Abu Ahmed Khan v. Allahabad Bank Ltd.(1) by a Full Bench of the Calcutta High Court consisting of Sir Lancelot Sanderson, Sir John Woodroffe, Sir Asutosh Mookerjee, Sir Charles Chitty and Teunon, J. We do not propose to go outside the terms of the decision in that case for it is clear to us that there may occasionally arise a case in which the provisions of S. 151 must be invoked to secure a proper decision of an appeal. The order in the case before us was dearly not an order under O. 41, R. 23. It must be regarded as an order made under the inherent power of the Court conferred by S. 151 to remand a case for re trial. Against such an order no appeal would lie. The appeal must therefore be dismissed with costs. We wish to add however that it is explicitly stated in Ghaznavi's case that this power of remand should be exercised with the very greatest caution. With this view we are in entire agreement.
3. Had it been shown that there was reason to believe that the Court had remanded the case for retrial to avoid deciding a complicated point or reduce a heavy pending file we should have felt bound to interfere under S. 115 of the Code. This has not been suggested in the argument and there is nothing in the learned Subordinate Judge's judgment in this case to show that he was not genuinely of opinion that he was required for the ends of justice to adopt the course taken.
V.S/R.K
4. Appeal dismissed.