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Acts
  • Section 562." 6. Section 566 of the 1882 Code corresponded to Order XLI, Rule 25, of the present Code.
  • Case Note: Civil Procedure Code (Act V of 1908), Sections 107, 151, Order XLI, Rule 23
  • Code of 1908 the restrictive provision contained in Section 564,
  • Section 122 or Section 125 [Section 2, Clauses 16 and 18].
  • Section 107 of the Code of Civil Procedure of 1908
  • Order XLI, Rule 23 and Rule 25, and Section 5154
  • Section 107 of the Code of Civil Procedure
  • provisions of Section 564 of the last Code
  • Sections 100 and 101 of the Code of 1908.
  • 26. Section 107, Sub-section (1), of the Code
  • Civil Procedure Code of 1882 the Section
  • Order XLI, Rule 23, of the same Code,
  • Order XLI, Rule 23. 20. Section 107
  • Section 564 of the Code of 1882.
  • Section 107, viz, Rules 25 to 29
  • Order XLI, Rule 23, of the Code,
  • Section 562 nor Section 566
  • Code of 1882. Section 564
  • Code of 1918 Section 151,
  • Section 114 of the Code
  • 12 C. L. J. 368. "Rule 23
  • Order XLI, Rule 23,
  • Rule 23, Order XLI
  • Order XLL, Rule 23,
  • Section 107 (1) 33
  • Section 107 (1) (b),
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Cited by
Citation Codes
Equivalent Citations
citation codes
Acts
  • Section 562." 6. Section 566 of the 1882 Code corresponded to Order XLI, Rule 25, of the present Code.
  • Case Note: Civil Procedure Code (Act V of 1908), Sections 107, 151, Order XLI, Rule 23
  • Code of 1908 the restrictive provision contained in Section 564,
  • Section 122 or Section 125 [Section 2, Clauses 16 and 18].
  • Section 107 of the Code of Civil Procedure of 1908
  • Order XLI, Rule 23 and Rule 25, and Section 5154
  • Section 107 of the Code of Civil Procedure
  • provisions of Section 564 of the last Code
  • Sections 100 and 101 of the Code of 1908.
  • 26. Section 107, Sub-section (1), of the Code
  • Civil Procedure Code of 1882 the Section
  • Order XLI, Rule 23, of the same Code,
  • Order XLI, Rule 23. 20. Section 107
  • Section 564 of the Code of 1882.
  • Section 107, viz, Rules 25 to 29
  • Order XLI, Rule 23, of the Code,
  • Section 562 nor Section 566
  • Code of 1882. Section 564
  • Code of 1918 Section 151,
  • Section 114 of the Code
  • 12 C. L. J. 368. "Rule 23
  • Order XLI, Rule 23,
  • Rule 23, Order XLI
  • Order XLL, Rule 23,
  • Section 107 (1) 33
  • Section 107 (1) (b),
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Smart Summary

Full Bench Opinion — Summary (Civil Procedure Code: Remand under Section 107 and Section 151)

Factual and Procedural Background

This opinion is a Full Bench reference concerning the proper scope of an Appellate Court's power to remand a case under Section 107 of the Code of Civil Procedure, 1908, and the interaction of that power with Order XLI, Rule 23, and with Section 151 (the statutory recognition of inherent powers). The reference arose out of an application for review of the judgment delivered in Appeal No. 27 of 1916 (see para. 25). The Full Bench considered the question through several separate judgments (Sanderson, C.J.; Woodroffe, J.; Mookerjee, J.; Chitty, J.; Teunon, J.) and addressed also whether a remand may be ordered where, in the opinion of the Appellate Court, there has been "no proper trial."

Legal Issues Presented

  1. Whether the power of the Appellate Court with regard to a remand under Section 107 of the Code of Civil Procedure, 1908, is restricted to the contingency specified in Order XLI, Rule 23.
  2. Whether it is competent for the Appellate Court to remand a case in which, in the opinion of that Court, there has been no proper trial.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Habib Bakhsh v. Baldeo Prasad, 23 A. 167 (A.W.N. 1901) 39 Illustrates that under the 1882 Code courts exercised inherent jurisdiction to remand where justice required, despite statutory provisions (e.g., Section 564 of 1882). Used to show the state of the law under the 1882 Code and that earlier practice supported remands outside the specific statutory contingency.
Hukum Chand Boid v. Kamalanand Singh, 33 C. 927 : 3 C.L.J. 67 Authority for the proposition that the Code was not exhaustive and inherent powers could be exercised to do justice between parties. Cited repeatedly by the Bench as precedent supporting the existence and exercise of inherent jurisdiction to order remands when necessary for justice.
Mani Mohan Mandal v. Ramtaran Mandal, 33 Ind. Cas. 329 : 43 C. 148 Explains relation between the body of the Code (which creates jurisdiction) and the rules (which indicate the mode of exercise); used to interpret Section 107 and the rules together. Relied upon (notably by Woodroffe, J.) to support that the body of the Code must be read in conjunction with the rules and that the rules indicate the mode of exercising the jurisdiction created by the Code.
Hurro Chunder Roy Chowdhry v. Shoorodhonee Debia, 9 W.R. 402 (B.L.R. Sup. Vol.) Early enunciation of the doctrine of inherent power of courts to make orders necessary for ends of justice (attributed to Sir Barnes Peacock). Cited as an antecedent source for the doctrine embodied in Section 151 and relied upon to show the historical basis of inherent jurisdiction.
Panchanan Singha Roy v. Dwarka Nath Roy, 3 C.L.J. 29 Earlier restatement/affirmation of the doctrine of inherent powers of the Court to order measures necessary for justice. Used as an example of prior judicial recognition of the inherent power which Section 151 codifies or recognizes.
Tohra (Zohra) Bibi v. Zabeda Khatoon, 7 Ind. Cas. 75 : 12 C.L.J. 368 An early case considered in support of the view that remand powers beyond statutory provisions may be exercised by invoking inherent jurisdiction. Cited by multiple judges (including Mookerjee and Chitty) as precedent where inherent jurisdiction was invoked to meet ends of justice and as an example that supports remand outside the specific rule.
Gora Chand v. Basanta Kumar, 12 Ind. Cas. 684 : 15 C.L.J. 258 Decision recognizing or applying inherent judicial jurisdiction in appropriate cases. Relied upon by Mookerjee, J., as part of the line of cases supporting inherent powers to order remedies not expressly provided by the Code.
Upendra Chandra v. Shaikh Sabhan, 11 Ind. Cas. 183 : 15 C.L.J. 6 Subsequent authority following the view that inherent jurisdiction supports remand in exceptional cases. Referenced by Mookerjee, J., as later authority consistent with the principle that remand beyond the rules is permissible where necessary for justice.
Meah Uzir Ali Sardar v. Savai Behara, 32 Ind. Cas. 791 : 43 C. 938 : 20 C.W.N. 547 Authority cited as following the view that remand beyond the specific rule may be ordered under the Court's inherent powers in appropriate cases. Used by Mookerjee, J., to show other High Courts have adopted the view permitting such remands under exceptional circumstances.
Perumbra Nayar v. Subrahmanian Pattar, 23 M. 445 : 10 M.L.J. 61 An example where Courts traced remand authority to inherent power where appropriate. Referred to as an example of earlier practice under the 1882 Code where remand authority was invoked beyond the express statutory provisions.
Jadab Gobinda Singh v. Anath Bandhu Saha, 5 Ind. Cas. 998 : 37 C. 171 Illustrative of judicial practice under earlier Codes dealing with remand authority. Cited in narrative of historical practice to support the view that remanding outside explicit statutory contingencies occurred under the 1882 Code.
Narottam Bajaram v. Mohanlal Kahandas, 17 Ind. Cas. 891 : 37 B. 289 : 14 Bom L.R. 1154 Example of a High Court decision under the 1908 Code adopting the view that remand beyond Rule 23 may be permissible. Cited by Mookerjee, J., to show that other High Courts under the 1908 Code have allowed remands outside Rule 23 in appropriate cases.
Kuppelan v. Kunjuvalli, 9 Ind. Cas. 790 : 9 M.L.T. 378 Another High Court example where remand beyond the literal rule was permitted in exceptional circumstances. Used as part of the body of authorities demonstrating practical acceptance of remand by inherent jurisdiction post-1908.
Vemula Jambalaya v. Iskala Rajamma, 15 Ind. Cas. 859 : 36 M. 492 High Court decision cited among instances recognizing remand outside the strict wording of Rule 23 where justice required. Relied upon as additional authority showing the principle's application in various jurisdictions under the 1908 Code.
Nabin Chandra Tripati v. Pran Krishna Dey (20 Ind. Cas. 39 : 41 C. 108 : 18 C.L.J. 613) Represents the contrary view (expressed by Stephen and Mullick, JJ.) that rules restrict the application of sections and thus limit remedies to those provided by the rules. Cited by Mookerjee and Chitty as a judgment expressing the limiting view; the Bench discusses and (in places) respectfully dissents from that contrary view.

Court's Reasoning and Analysis

The Full Bench approached the reference by examining legislative history, the prior law under the Code of 1882, the wording of Section 107 of the 1908 Code, the inclusion of Section 151 (recognising inherent powers), and the relationship between the body of the Code and the rules (Order XLI). The several judges reached conclusions that overlap in key respects and differ in emphasis; the following summarizes the principal analytical steps actually adopted in the opinions:

1. Examination of prior law and legislative context (Sanderson C.J., Mookerjee, and others)
  • The Court reviewed the 1882 Code, noting that Section 562 (corresponding to present Rule 23) was followed by a restrictive provision (Section 564) which purported to bar remands except as provided in Section 562.
  • Despite that restrictive provision, earlier decisions had recognised that the 1882 Code did not exhaustively eliminate inherent jurisdiction, and that Courts had in practice remanded in appropriate cases relying on inherent powers. (Cited authorities: Habib Bakhsh, Hukum Chand Boid, Perumbra Nayar, Jadab Gobinda Singh, etc.)
  • When the 1908 Code was enacted, the restrictive provision comparable to Section 564 was not reproduced; in addition Section 151 (the express preservation of inherent powers) was introduced. The Court considered that historical development significant when construing Sections 107 and 151 together.
2. Textual and structural reading of Section 107 vis-à-vis the rules (multiple opinions)
  • Section 107 confers on an Appellate Court certain powers "subject to such conditions and limitations as may be prescribed" — i.e., subject to rules in Order XLI. Several judges therefore emphasised that the powers created by the body of the Code must be read in conjunction with the rules which prescribe the mode of exercising those powers (drawing on Mani Mohan Mandal v. Ramtaran Mandal).
  • Some judges (notably Chitty and Teunon) stressed that where the Code and rules specifically deal with a subject, the provisions are to be treated as exhaustive for that subject so far as the statutory power under Section 107 is concerned; accordingly, remand de novo under Section 107 ought generally to be confined to the contingency described in Order XLI, Rule 23 (the case of disposal on a preliminary point).
3. Role and import of Section 151 (the statutory recognition of inherent jurisdiction)
  • All members of the Bench recognised Section 151 as a statutory recognition/preservation of the Court's inherent powers to make orders necessary for ends of justice or to prevent abuse of process.
  • The judges concluded that Section 151 must be read with Section 107: where the Code and rules do not provide an adequate remedy for a case that in justice requires a remand, the Appellate Court may, invoking its inherent jurisdiction (preserved by Section 151), order a remand.
  • This exercise of inherent power, the Bench held, must be exercised cautiously and only where the specific provisions of the Code/rules are insufficient to meet the necessities of the case. The Court must base its decision on general legal principles and may not invoke inherent jurisdiction to circumvent explicit provisions of the Code or rules that adequately address the situation.
4. Practical and doctrinal conclusion about remand power
  • On the one hand, several judges emphasised that Section 107, read with the rules, contemplates remand in the specific contingencies enumerated in Order XLI (and the rules indicate the mode of exercise of appellate jurisdiction).
  • On the other hand, and importantly, the Bench recognised a consistent line of authority and legislative history (including the omission of the restrictive Section 564 from the 1908 Code and the introduction of Section 151) that supports the view that an Appellate Court may, in exceptional cases and for the ends of justice, order a remand even where the precise contingency is not specified in Rule 23 — but only by invoking the Court's inherent jurisdiction and subject to caution and principle.
  • Several judges observed practical examples and prior High Court decisions under the 1908 Code that have followed this approach (cited decisions include Narottam Bajaram v. Mohanlal Kahandas; Kuppelan v. Kunjuvalli; Vemula Jambalaya v. Iskala Rajamma).
5. On the second question (remand where there has been "no proper trial")
  • The Bench uniformly found the second question too wide and fact-specific to be usefully answered in general terms by the Full Bench. Several judges declined to give a general answer on whether an Appellate Court may remand merely because it considers there had been "no proper trial," observing that such an inquiry would open questions of fact and risk misapprehension.
  • The Advocate-General indicated he would be satisfied with a decision on the first question alone, and the Bench therefore did not attempt a definitive general answer to the second question.

Holding and Implications

Core holding: The Full Bench concluded, as a matter of legal principle reflected across the separate judgments, that although the power of remand under Section 107 must be read with and is subject to the limitations and modes prescribed by the rules (notably Order XLI), the statutory recognition of inherent powers in Section 151 preserves the Court's inherent jurisdiction to order a remand in cases not strictly covered by Order XLI, Rule 23, where such a remand is necessary for the ends of justice. The exercise of that inherent jurisdiction must be cautious and applied only when the specific provisions of the Code and rules are not adequate to meet the necessities of the case.

Implications:

  • The immediate practical effect is that an Appellate Court may, in exceptional circumstances and on principled grounds, order a remand and retrial even if the case does not fall precisely within the contingency described in Order XLI, Rule 23 — but only by invoking inherent jurisdiction preserved by Section 151 and only where the Code and rules do not provide an adequate remedy.
  • The decision emphasises that the rules (Order XLI) govern the normal exercise of remand powers under Section 107; therefore, where the Code and rules directly address the situation, those provisions should be followed rather than invoking inherent jurisdiction.
  • The opinion does not attempt to give a general rule about every case in which an Appellate Court may remand for an alleged failure of trial procedure (the Bench declined to answer the second, wide-formulated question in the abstract). Therefore, whether a particular factual situation warrants invocation of inherent jurisdiction to remand remains a matter for case-by-case determination by the trial and appellate courts.

Note: This summary is prepared strictly from the text of the provided opinion. No facts, arguments or consequences beyond those explicitly stated in the opinion have been inferred or invented.

Show full summary ...

    Abdul Karim Abu Ahmed Khan Ghaznavi v. The Allahabad Bank, Ltd.

    Case Note:

    Civil Procedure Code (Act V of 1908), Sections 107, 151, Order XLI, Rule 23 - Remand, power to order--Inherent jurisdiction of Court, token to be invoiced--Rules of Code, whether govern Sections.

    Sanderson, C.J.

    1. Think the reference may conveniently be considered in two parts.

    2. First---whether the powers of the Appellate Court with regard to a remand under Section 107 of the Code of Civil Procedure of 1908 is restricted to the case specified in Order XLI, Rule 23, and 2nd---whether it is competent to the Appellate Court to remand a case in which in the opinion of the Court there has been no proper trial.

    3. As regards the first part:

    4. In order to ascertain the intention of the Legislature on this point, I think it is useful to examine the state of the law at the time the 1908 Code was passed.

    5. Under the Civil Procedure Code of 1882 the Section which corresponded in effect to Order XLI, Rule 23, was 562. That section, however, was followed by 564 which provided that The Appellate Court shall not remand a case for a second decision except as provided in Section 562."

    6. Section 566 of the 1882 Code corresponded to Order XLI, Rule 25, of the present Code.

    7. It had been held that though the Code of Civil Procedure of 1882 bound all Courts as far as it went, it was not exhaustive and did not affect previously existing powers, and that in matters with which it did not deal, the Court would exercise inherent jurisdiction to do that justice between the parties which was warranted by the circumstances and which the necessities of the case required and that in spite of the express provision of section 564 the Appellate Court was not precluded from remanding a suit in a case to which neither Section 562 nor Section 566 applied. See Habib Bakhsh v. Baldeo Prasad 23 A. 167 : A. W. N. (1901) 39 and Hukum Chand Boid v. Kamalanand Singh 33 C. 927 : 3 C.L. J. 67.

    8. The law being as stated above with regard to the power of remand, the 1908 Civil Procedure Code was passed.

    9. The scheme of this Code is different from that of 1882. A general power is given by Section 107, which is made by its terms subject to such conditions and limitations as may be prescribed" (which means prescribed by rules) and the provisions of sections 562 and 566 of the old code are in effect reproduced in Order XLI, Rule 23 and Rule 25, and Section 5154 has not been re-enacted either in the Code itself or in the rules.

    10. Further a new Section applicable to this matter, viz., Section 151, was introduced. This Section is as follows:---

    "Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."

    11. In my judgment it was not the intention of the Legislature in the Code of 1908 to limit the powers of remand to the case specified in Order XLI, Rule 23, but that it intended to and did recognise and preserve such powers as had been exercised theretofore.

    12. I think it may fairly be argued that under Section 107 read by itself, and having regard to the words "subject to such conditions and limitations as may be prescribed", the power of remand is limited to the case described in Order XLI, Rule 23: but that does not dispose of the matter, for that Section must be read together with Section 151, which not only recognises but expressly preserves the inherent powers of the Court to make such orders as may be necessary for the ends of justice.

    13. The question whether it is necessary for the ends of justice to exercise such powers of remand must depend upon the circumstances of each particular case, and in exercising such jurisdiction the Court must no doubt be careful to see that its decision is based on general legal principles and subject to the Rule that if the Code does contain specific provisions which would meet the necessities of the case in question, such provisions should be followed and the inherent jurisdiction should not be invoked.

    14. In my judgment, therefore, the powers of the Appellate Court as regards remand are not restricted to the case specified in Order XLI, Rule 23, but the Court, by reason of its inherent jurisdiction, recognised and preserved in the Code as above mentioned, may order a remand in cases other than the case specified in Order XLI, Rule 23, if it be necessary for the ends of justice.

    15. As regards the second part of the reference I think on further consideration that it is couched in too general terms, and that an answer to such a general question might lead to difficulty and misapprehension and inasmuch as the answer to the first part of the reference is really sufficient to dispose of the matter, I do not think it is necessary to give a specific answer to the second part of the reference.

    Woodroffe, J.

    16. The reference raises two questions, firstly, whether the Court's power of remand under Section 107 is restricted to the case specified in Order XLI, Rule 23, of the Code, and secondly, (if the answer be in the negative) whether it is competent to the Appellate Court to remand a case in which, in the opinion of that Court, there has been no proper trial. These two matters should, I think, be kept distinct. As regards the first part of the reference, the power to remand is sought to be baaed both on section 107 of the code and on the inherent jurisdiction. In my opinion, Section 107 cannot be relied upon as giving further powers than those which are specifically mentioned in the rules. This question of the relation between the body of the Code and the rules has been discussed in Mani Mohan Mandal v. Ramtaran Mandal 33 Ind. Cas. 329 : 43 C. 148 by Sir Lawrence Jenkins, C. J., who took part in the framing of the new Code. I agree with what is there said and I need not repeat the whole of it. The body of the Code creates jurisdiction while the rules indicate the mode in which it is to be exercised. The body of the Code must, therefore, be read in conjunction with the rules either as existing at the date of publication of the Code, or as altered or added to subsequently. A contrary view might lead to difficulties, for (to take an example) it might be urged that Section 114 of the Code gave the Court power to entertain a review in oases not covered by Order XLVII, Rule 1. I think, therefore, that the power of remand under Section 107 is limited to the case described in Rule 23, Order XLI If this were not so, the rules would be unnecessary, for the general power of remand would cover not only Order XLI, Rule 23, but every other conceivable case. But Sir Lawrence Jenkins went on to say; And this is the general rule, except under special conditions which have no application in the circumstances of the off be." What is it which authorises the Court to act in such cases? In my opinion, we must invoke in such a case the inherent powers of the Court which are both recognised and saved by section 151 of the code. I have dealt with this question, whether the Code is exhaustive or not and whether the Court has inherent jurisdiction to pass such orders as justice requires, in my judgment in Hukum, Chand Boid v. Kamalanand Singh 33 c. 927 : 3 C. L. J. 67 and I therefore, do not repeat what I have said there. Doubtless this exercise of inherent jurisdiction must be exercised with care, subject to the general legal principles and to the condition that the matter is not one with which the Legislature has so specifically dealt as to preclude the exercise of inherent power. But it is argued here that the Code has dealt with the subject of remand and has, therefore, indicated that it is not to be ordered except in the one specific instance mentioned in Order XLI, Rule 23. I am not prepared to hold this,---the more so that Section 554 of the previous Code has not been re-enacted. The mere fact that Section 107 deals with remand does not exclude the Court's inherent jurisdiction to make orders of remand in cases other than those covered by Order XLI, Rule 23. I am of opinion, therefore, that the powers of the Appellate Court as regards remand are not limited to the specific case mentioned in Order XLI, Rule 23, and that the Court, under its inherent jurisdiction to do what is right and necessary, may order a remand in cases other than those covered by that order if justice so requires it. Whether justice does require a Court to invoke its inherent jurisdiction, must be determined by that Court with reference to the particular facts of the case and the Rule of law that a Court cannot invoke an inherent jurisdiction where there is a provision in the Code, whether by way of remand or otherwise, which, if applied, will meet the justice of the case. The merits of the particular application out of which this reference arose are not before us.

    17. The second part of the reference is in such wide terms that I feel a difficulty in answering it in a manner which will not lead to misapprehension. Thus the words a "proper trial" might include cases within Order XLI, and an answer in the affirmative might enable the Courts to order wrongly a new trial, although the particular case ought to be dealt with under the provisions of Order XLI. It is the less necessary to do so as the Advocate-General has stated that he will be satisfied with a decision given on the first part of the reference.

    Mookerjee, J.

    18. The question referred for decision has been framed in the following terms: Whether the power of the Appellate Court with regard to a remand under Section 107 of the Code of Civil Procedure is restricted to the case specified in Order XLI, Rule 23, of the same Code, or, whether it is competent to the Appellate Court to remand a case in which, in the opinion of that Court, there has been no proper trial."

    19. I shall confine myself to an examination of the first branch alone of the question formulated; for, if it is answered in the negative, the second does not arise, while if it is answered in the affirmative, the second need not be considered, as it is not necessary for our present purpose to specify the limits of the power of remand, if such power is capable of exercise in cases other than those contemplated by Order XLI, Rule 23.

    20. Section 107 recognises the power of an Appellate Court to remand a case, but such power is expressly made subject to such conditions and limitations as may be prescribed, that is, prescribed by rules and forms contained in the First Schedule or made under Section 122 or Section 125 [Section 2, Clauses 16 and 18]. This, in my opinion, does not necessarily imply that wherever there is a provision in the rules relating to the matters mentioned in the section, the provision is by way of condition or limitation; whether a particular Rule has or has not this effect must clearly depend on its terms. This is not inconsistent with the view indicated by Jenkins, C. J., in Mani Mohan Mandal v. Ramtaran Mandal 33 Ind. Cas. 329 : 43 C. 148 that the body of the Code creates jurisdiction while the rules indicate the mode in which it is to be exercised, which, it is important to observe, is essentially different from the view adopted by Stephen, J, in Na(sic)in Chandra Tripati Y, Pran Krishna Dey 20 Ind, Cas. 39, 41 C. 108 : 18 C. L. J. 613, that the sections lay down general principles while the rules provide the means by which they can be applied and they cannot be otherwise applied as the rules restrict the provisions contained in the sections. I do not read Order XLI, Rule 23, as a limitation on the power of remand recognised in Section 107, in the sense that the power to remand can be exercised only in the contingency mentioned in Order XLI, Rule 23. Apart from this, it seems to me to be incontestable that Section 151, which embodies a statutory recognition of the inherent power of a Court to make such orders as may be necessary for the ends of justice, gives ample authority to the Court to make an order of remand in cases not comprised within Order XLI, Rule 23, where the Court is satisfied that such order is necessary for the ends of justice. Section 151 does not recognise a new principle; it embodies a doctrine which had been enunciated by Sir Barnes Peacock in Hurro Chunder Roy Chowdhry v. Shoorodhonee Debia 9 W. R. 402 at p. 406 : B. L. R. Sup. Vol. 985 and was re stated and re affirmed by Woodroffe, J., and myself, in Panchanan Singha Roy v. Dwarka Nath Roy 3 C. L. J. 29 and Hukum Chand Boid v. Kamalanand Singh 33 c. 927 : 3 C. L. J. 67. I feel no doubt whatever that nothing in Section 107 restricts in any manner the application of the principle of inherent power recognised by Section 151. This was the view adopted by me, after careful consideration and in concurrence with Carnduff, J, in Tohra (Zohra) Bibi v. Zabeda Khatoon 7 Ind. Cas. 75 : 12 C. L. J. 368 and Gora Chand v. Basanta Kumar 12 Ind. Cas. 684 : 15 C. L. J. 258. I see no reason to depart from that view, which has been subsequently followed in Upendra Chandra v. Shaikh Sabhan 11 Ind. Cas. 183 : 15 C. L. J. 6 and Meah Uzir Ali Sardar v. Savai Behara 32 Ind. Cas. 791 : 43 C. 938 : 20 C. W. N. 547. The decision of Jenkins, C. J., and N. R. Chatterjea, J., in Mani Mohan Mandal v. Ramtaran Mandal 33 Ind. Cas. 329 : 43 C. 148 also recognises the power of a Court of Appeal to order a remand under special conditions not included in Order XLI, Rule 23. I respectfully dissent from the contrary view expressed by Stephen and Mullick, JJ., in Nabin Chandra Tripati v. Bran Krishna Dey 20 Ind. Cas. 39. 41 C. 108 : 18 C. L. J. 613. That the Code itself recognises the power of a Court to direct a remand in circumstances other than those specified in Order XLI, Rule 23, is clear from the terms of Section 99. I am fortified in my conclusion by an examination of the condition of the law as it stood under the Code of 1882. Section 564 explicitly provided that the Appellate Court shall not remand a case for a second decision except as provided in Section 562 : yet, the Courts had repeatedly claimed a power to direct a remand in circumstances not included in Section 562. The Court sometimes traced the source of this authority to its inherent power to make such orders as might be needed for the ends of justice, as in Perumbra Nayar v. Subrahmanian Pattar 23 M. 445 : 10 M. L. J. 61 : 8 Ind. Dec. (n. S.) 712 but on mother occasions the Court, apprehensive as it were to invoke its inherent power, treated the authority as involved by implication in one or other of the provisions of the Code, for instance, in Habib Bakhsh v. Baldeo Prasad 23 A. 167 : A. W. N. (1901) 39. See also Jadab Gobinda Singh v. Anath Bandhu Saha 5 Ind. Cas. 998 : 37 C. 171. While the law was in this condition, the Legislature took two significant steps, namely, first, they refrained to reproduce in the Code of 1908 the restrictive provision contained in Section 564, and, secondly, they introduced in the Code of 1918 Section 151, which recognises in explicit terms the Inherent power of a Court to make such orders as may be necessary for the ends of justice. The only inference legitimately deducible from this history of the legislation on the subject is that the Legislature intended to place beyond all doubt and dispute the authority of an Appellate Court to direct a remand and retrial in cases other than those comprised in Order XLI, Rule 2J, where the Court is satisfied that such order is necessary in the ends of justice. There is, on the other hand, the significant fact that sections 584 and 585 of the code of 1882, which enumerated the grounds for a second appeal and prescribed a restriction that a second appeal did not lie on any other ground, re-appear as Sections 100 and 101 of the Code of 1908. The view that a Court of Appeal is competent to direct a remand and re-trial in a case not covered by Order XLI, Rule 23, if the Court is satisfied that such an order is necessary in the ends of justice, has been adopted in other High Courts under the Code of 1908: Narottam Bajaram v. Mohanlal Kahandas 17 Ind. Cas. 891 : 37 B. 289 : 14 Bom L. R. 1154; Kuppelan v. Kunjuvalli 9 Ind. Cas. 790 : 9 M. L. T. 378 : (1911) 1 M. W. N. 199; Vemula Jambalaya v. Iskala Rajamma 15 Ind. Cas. 859 : 36 M. 492 : (1912) M. W. N. 1000 : 24 M. L. J. 512. It is undeniable that exceptional cases, not capable of exhaustive enumeration or classification, do sometimes occur in which defects of trial are so radical as to be incurable otherwise than by a re-trial de novo. In a case of this decription, it is incumbent on the Court of Appeal to exercise its inherent power to make such orders as, in its opinion, are required in the ends of justice. The exercise of such inherent powers can only be invoked where the Court is satisfied that the specific provisions of the Code are not sufficient to meet the necessities of the case. The Court of Appeal is invested with plenary powers to correct errors of procedure committed by the Trial Court, as is clear from an examination of rules 24---29 contained in Order XLI of the Code. These provisions cannot be arbitrarily disregarded on well-established principles, which regulate the exercise of inherent power by a Court of Justice, as explained in the judgments in Hukum Chand Boid v. Kamalanand Singh 33 c. 927 : 3 C. L. J. 67 and Panchanan Singha Roy v. Dwarka Nath Roy 3 C. L. J. 29 : but where the Court of Appeal is satisfied that the correction of the omissions or defects in the trial is not reasonably practicable by recourse to one or other of the provisions mentioned, that is, where it is clearly apparent that the Appellate Court cannot itself satisfactorily dispose of the suit on the merits by the adoption of the specific procedure mentioned in rules 24---29, a remand for re-trial is not only permissible but obviously incumbent on the Court. This view has been followed in practice in this Court for a long series of years, and this is obviously a case for the application of the maxim cursus curice est leae curiae. In my opinion the reference should be answered in the terms mentioned in the judgment of the learned Chief Justice.

    Chitty, J.

    21. The following question has been referred for decision by the Full Bench:--- Whether the power of the Appellate Court with regard to a remand under Section 107 of the Code of Civil Procedure is restricted to the case specified in Order XLI, Rule 23, of the same Code, or whether it is competent to the Appellate Court to remand a case in which in the opinion of that Court there has beep no proper trial," These are really two separate questions, to which it would be inconvenient if not impossible to give a single answer.

    22. Dealing with the first part of the question I confess that I was at first sight inclined to think that Order XLI, Rule 23, while prescribing a condition to a remand under Section 107 (1) 33 Ind. Cas. 329 : 43 C. 148, did not impose any limitation on the power of an Appellate Court under that section. There are no words of limitation to be found in Rule 23. As was said by the Court in Tohra (Zohra) Bibi v. Zabeda Khatoon 7 Ind. Cas. 75 : 12 C. L. J. 368.

    "Rule 23 makes provision for a particular contingency, but clearly its scope is neither exclusive nor all-embracing."
    Section 99, also, which precedes Section 107 and which forbids a remand under certain circumstances, seemed to me to imply that there may be cases of remand not covered by Order XLI, Rule 23. On the other hand, however, it may be reasonably urged that if Order XLL, Rule 23, merely prescribes one contingency, in which a remand may be made, and leaves the general provisions of section 107 otherwise unfettered in this respect, then Rule 23 is wholly unnecessary and superfluous, and the same might also be said of the other rules which regulate fie powers of an Appellate Court conferred by Section 107, viz, Rules 25 to 29 inclusive. It is obvious that this cannot have been the intention of the Legislature, which framed the present Code and rules together. It may be noted that by Order XLIII, Rule I (u) the right of appeal is given only against an order under Order XLI, Rule 23, remanding a case. This indicates that the only order of remand under Section 107 (1) (b), contemplated by the Code and rules as framed, is one made under Order XLI, Rule 23. I had the advantage of reading the judgment of Woodroffe, J, and I agree with what he has said in this connection. This was also the view expressed by the late Chief Justice Sir Lawrence Jenkins in the case of Mani Mohan Mandal v. Ramtaran Mandal 33 Ind. Cas. 329 : 43 C. 148 and his opinion is entitled to all the more weight as he was in a great measure responsible for the Code of Civil Procedure and the rules as they now stand.

    23. It follows that the first part of the question must be answered in the affirmative, but the matter does not end there. I entirely agree that while the power of remand given to an Appellate Court by Section 107 (1) (b) is restricted by Order XLI, Rule 23, the inherent power of the Court, which is expressly reserved to it by Section 15, may be invoked to enable it to make an order of remand in circumstances which are not provided for by the Code or the rules, This power must be exercised with the greatest caution. It must not be exercised to enable the Court to pass an order contrary to the provisions of the Code or the rules. Nor can it properly be exercised in circumstances where the Code or rules provide an adequate remedy, as for example in the case of Mani Mohan Mandal v. Ramtaran Mandal 33 Ind. Cas. 329 : 43 C. 148 above cited, which was a case of adducing additional evidence. A good example of a case to meet which there is no provision in the Code or rules is Tohra (Zohra.) Bibi v. Zabeda Khatoon 7 Ind. Cas. 75 : 12 C. L. J. 368 also above cited, which is the earliest of the cases now under review. Sir Lawrence Jenkins no doubt had this in mind when he said: These rules provide that in the case of a lower Appellate Court the power of reversal and remand is limited to the position described in Rule 23, Order XLI. And this, is the general Rule except under special conditions which have no application in the circumstances of this case." In this view of the matter the prohibition on remands contained in Section 99 also becomes intelligible.

    24. I do not think that the second part of the question can be properly answered by this Full Bench. The expression case in which in the opinion of the Appellate Court there has been no proper trial" opens up questions of fact, into which this Bench cannot go. It is, however, unnecessary to discuss the matter further, as the learned Advocate-General stated that he would be content with an answer to the first question.

    Teunon, J.

    25. This reference arises out of an application for review of the judgment delivered in Appeal No. 27 of 1916, and the question referred to the Full Bench has been stated in the following terms: namely, whether the power of the Appellate Court with regard to a remand under Section 107 of the Code of Civil Procedure is restricted to the case specified in Order XLI, Rule 23, of the same Code or whether it is competent to the Appellate Court to remand a case in which, in the opinion of that Court, there has been no proper trial.

    26. Section 107, Sub-section (1), of the Code provides that subject to such limitations and conditions as may be prescribed an Appellate Court shall have power

    (a) to determine a case finally, (6) to remand a case,

    (c) to frame issues and refer them for trial,

    (d) to take additional evidence or to require such evidence to be taken.

    27. For the purposes of this reference Sub-section (2) may be disregarded.

    28. The limitations and conditions prescribed are to be found in the rules contained in the First Schedule to the Code, that is, in the rules contained in Order XLI.

    29. It is now well settled that as regards matters specifically dealt with by the Code, the provisions of the Code are exhaustive. It would seem to follow that when an Appellate Court finds itself unable to arrive at a final determination, it should deal with the case under one or other of the Sub-clauses (b), (c) and (d) in accordance with the circumstances set out in the appropriate rule. A case should, therefore, be remanded, in other words, a de novo trial should be directed, only where Order XLI, Rule 23, is applicable, that is to-say, where the Trial Court has disposed of the suit upon a preliminary point,"

    30. In the course of the argument before us some stress was laid upon the omission from the present Code of the express prohibition of a de novo trial in other capes which was to be found in Section 564 of the Code of 1882. To this omission I am unable to attach any great importance, as in the view I take the provisions of Section 564 of the last Code have been in effect incorporated in the wider language used in the opening clause of Section 107 (1), that is to say, in the words "subject to such limitations and conditions as may be prescribed,".

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    Abdul Karim Abu Ahmed Khan Ghaznavi v. The Allahabad Bank, Ltd.
    (Mar 11, 1917)