JUDGMENT
1. The plaintiff who is one of the respondents before us instituted the suit out of which this appeal has arisen for recovery of Rs. 150 principal amount and some interest on certain allegations which briefly come to this that the defendants were liable to make good the money to him (the plaintiff) as the heir of one Parsotam by virtue of certain agreements. The defence, inter alia, was that the suit was not cognizable by the Court at Muttra.
2. The learned Munsif who heard the case accepted the plea of the defendants and ordered the plaint to be returned to the plaintiff's pleader for presentation to the proper Court. The plaintiff thereupon filed an appeal before the learned Subordinate Judge of Muttra. That learned Judge held that the suit was cognizable by the Munsif of Muttra and by an order which is complained of dated 17th April 1928, reversed the order of the Munsif.
3. The first point that arises for decision is whether an appeal would lie from the order of the learned Subordinate Judge.
4. The learned Counsel for the appellant has argued that whatever might be the correct and proper order that should have been passed by, the learned Subordinate Judge, he did purport, as a matter of fact, to pass an order under Order 41 Rule 23 Civil P.C. and therefore by virtue of Cl (u), R.1, Order 43, Civil P.C. an appeal was permissible from the "order of remand" to this Court.
5. We are of opinion that this interpretation is not correct. It is true that the learned Judge did purport to pass an order under Order 41, Rule 23, Civil P.C. He was, however, hearing an appeal allowed under Order 43, Rule 1(a). No second appeal is allowed from the result of such an appeal by virtue of the provisions of Section 104, Civil P.C. The learned Subordinate Judge, by framing his order as an order passed under Order 41, Rule 23, Civil P.C., could not permit an appeal which would not otherwise lie. If we allow the interpretation which the learned Counsel for the appellant would put, there would be a conflict between Clause (a) and Clause (u), Order 43, read in the light of Section 104, Civil P.C. The correct interpretation of Clause (u), Rule 1, Order 43 is this. Before the amendment made by the Allahabad High Court of this Clause (u) the language of it stood as follows:
Clause (u)"-An order under Rule 23, Order 41 remanding a case where an appeal would lie from the decree of the appellate Court.
6. It happens that an order of remand is made from time to time which does not come within the four corners of the language of Rule 23, Order 41, Civil P.C., and yet such an order is justified. It was to cover a case like that that the High Court of Allahabad changed the language of Clause (u) so as to cover all the possible orders of remand. But it was never contemplated and could never have been contemplated that, by altering the language of Clause (u) a second appeal should be permitted from orders from which no second appeal is otherwise allowed. In the result we are of opinion that this appeal is not competent.
7. We were asked by the learned Counsel for the appellant to treat the case in revision and to hear him. The decision of the case depends on a consideration of the facts of the case and no question of law has to be considered. Besides, the Court below acted within its jurisdiction and if it went wrong, assuming it did go wrong, that fact would not invoke the revisional powers of the High Court. In the circumstances, we do not think that we should take up the matter in revision at all supposing that it was otherwise a fit case to be taken up in revision. The appeal is dismissed with costs.