JUDGMENT
Agarwala, J.
1. The plaintiff-respondent sued to set aside a money-decree which had been obtained against him by the defendant. The trial Court dismissed the suit and the plaintiff appealed. The Appellate Court has remanded the case to the first Court. Against the order of remand the defendant has preferred the present second appeal.
2. The learned Advocate for the respondent takes a preliminary objection that the order of remand in this case is not appealable, his contention being that the order was passed neither under Rule 23 nor Rule 25 of Oreder XLI, Civil Procedure Code, but under the inherent powers of the Court. The learned Advocate for the appellant does not contend that the order was made under Rule 25 but he does contend that it was made under Rule 23, Order XLI, and is, therefore, appealable. The question for determination is whether the first Court disposed of the suit on a preliminary point. If it was so disposed of, then the Appellate Court had power, if it disagreed with the decision on the preliminary point, to remand the case to the first Court under Rule 23. The meaning of the words “preliminary point” in Rule 93 has been considered by a Full Bench of the Madras High Court in Raman Nair v. Krishnan Nambudripad 69 Ind. Cas. 828 : A I R 1922 Mad. 505 : 45 M 900 : 31 M L T 208 : 16 L. W 425 : 43 M L J 354 : (1922) M W N 589. The Full Bench held that a preliminary point within the meaning of this rule
is any point the decision of which avoids the necessity for the full hearing of the suit.
3. The question, therefore, is whether in the present case the trial Court disposed of the case on a point which avoided the necessity for the full hearing of the suit. In the trial Court nine issues were framed, the principal issue was No. 7 which was whether the summon in the original money suit was suppressed through the fraud of the defendant and whether in consequence, the decree was liable to be set aside. The Court decided all the issues, and Issue No, 7 in very great detail. I am not, therefore, prepared to hold that the trial Court disposed of the suit on a preliminary point. The learned Advocate for the appellant referred to a number of cases of which it is necessary to cite only two: first, Basumati Debi v. Taritbasini Dad 44 Ind. Cas. 416 : A I R 1920 Cal 569 in which it was held that where an order of remand is, in form and substance an order under Rule 23, Order XLI, an appeal lies. That decision is not of any assistance is the present case where the question is whether the order under appeal is in form, or substance, an order under Rule 23. The second case to which it is necessary to refer is the decision in Kulsumunnissa v. Ram Prasad 67 Ind. Cas. 713 : A I R 1922 All. 226 : 44 A 92 : 20 A L J 321 : 4 U P L R (A) 168. in which it was held that where an order of remand is not expressly made under Section 151, it may be assumed to have been made under Rule 23 of Order XLI, Civil Procedure Code. Now, in the present case, as I have already said, it is impossible to hold that the suit was disposed of on a preliminary point, which is the essential necessity for the application of Rule 23, and therefore, it is not a case in which it can be assumed that the order was under Rule 23, for I am not prepared to assume that the Court exercised a jurisdiction not vested in it.
4. It was also contended by the learned Advocate that in this case an appellate decree has actually been drawn up, and therefore, he is entitled to appeal from that decree. But in my view a non-appealable order does not become an appealable decree because the order is drawn up in the form of a decree. In the case of Permanand Kumar v. Bhom Lohar 97 Ind. Cas. 105 : A I R 1926 Pat. 457 : 7 P L T 535 : 6 Pat. 160 : (1926) Pat 333. it was held by this Court that where an 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 ‘decree1 and must be treated as a non-appealable order. That is precisely the position in the present case. The Appellate Court has expressly avoided the expression of any opinion on any question at issue, in order not to prejudice the rehearing, for which the case was remanded.
5. The result is that the preliminary objection is upheld and the appeal is dismissed. The respondents are entitled to their costs.