1. This appeal under Section 100 of the Code of Civil Procedure is against the judgment and order dated 31.12.2011 passed by learned Second Additional Sessions Judge, Jamnagar in Regular Civil Appeal No.41 of 2010, whereby the learned Appellate Judge quashed and set aside the judgment and decree passed by the learned Trial Judge in Regular Civil Suit No.135 of 2005 dated 5.3.2010 and remanded the matter to the Trial Court for the purpose of deciding the below mentioned issue raised by the learned Appellate Judge, “whether the suit filed by respondent No.1 was barred on account of non- issuance of statutory notice”.
2. Respondent No.1 had filed the suit for declaration that the suit land was of his ownership and possession and the action of the appellant of removing the construction on the suit land was illegal and for permanent injunction restraining the appellant and other authorities from obstructing respondent No.1 from cultivating the land and enjoyment thereof.
3. The above suit was resisted by the appellant stating that respondent No.1 had no right and title to the suit property, that he had encroached upon the property and he had no right to remain on the suit property. Learned Trial Judge, on appreciation of the evidence available on record, came to the conclusion that respondent No.1 was not owner of the suit and therefore, he was not entitled to any relief in the suit and ultimately the suit was dismissed by the judgment and decree dated 5.3.2010.
4. The above said judgment and decree of the learned Trial Judge was challenged by respondent No.1 by filing Regular Civil Appeal before the learned Appellate Judge. Learned Appellate Judge did not decide any of the issues as regards the right, title and interest of the parties to the suit property but formed an opinion that the learned Trial Judge did not raise important issue as to whether the suit was barred because of non service of the statutory notice by respondent No.1 before filing the suit. The learned Appellate Judge observed that none of the parties had raised such issue before the learned Trial Judge as the same was not found from the judgment and decree passed by the learned Trial Judge. The learned Appellate Judge, therefore, formulated the above-said issue and remanded the entire matter to the Trial Court by quashing and setting aside the judgment and decree passed by the learned Trial Judge. It is this judgment and order which is under challenge in this Second Appeal.
5. It is found from the record that this Court on 11.6.2010 passed the following order:-
“1. Following substantial questions of law arise for determination in the present second appeal:
(i) Whether in the facts and circumstances of the case, learned Appellate Court was justified in remanding the matter solely on the ground that learned Trial Court has not framed issue with respect to statutory notice in the appeal preferred by the original plaintiff dismissing the suit?
(ii) Whether in the facts and circumstances of the case, learned Appellate Court was justified in remanding the matter solely on one issue and not deciding other issues in appeal more particularly in the appeal preferred by the original plaintiff dismissing the suit?
Notice for final disposal returnable on 27th June,2012. Direct service is permitted.”
6. In response to the notice issued by this Court, other side appeared and took preliminary objection about maintainability of the Second Appeal, which is found noted in the subsequent order dated 27.6.2012 passed by this Court. The same is reproduced as under:
“A preliminary objection is raised by Mr. S.M. Shah, learned advocate appearing on behalf of respondent No.1 with respect to maintainability of present second appeal by submitting that against the impugned order passed by learned Appellate Court under Order 41 Rule 96 of the Code of Civil Procedure, the present second appeal is not maintainable. The same is required to be considered in detail. Hence, S.O. to 9th July 2012.”
7. This Court therefore, heard both the parties on the issue of maintainability of the Second Appeal.
7.1. Learned advocate Shri S.M. Shah appearing for respondent No.1, who raised objection about maintainability of the Second Appeal, submitted that by the judgment and order under challenge, the learned Appellate Judge has remanded the entire matter to the learned Trial Court for deciding the issue raised by the learned Appellate Judge and such order of remand could not be termed or said to be decree within the meaning of Section 2 of the Code of Civil Procedure ('the Code' for short). He submitted that the Appellate Court has got power to pass the order of remand either under Rule 23, 23-A or Rule 25 of Order 41 of the Code and if the order of remand could not be said to have been passed under any of the above Rules, then such order of remand could be said to have been passed under Section 151 of the Code. But in any of the cases, order would still remain to be the order of remand and in such circumstances, remedy available to the aggrieved party would be of either Appeal from Order under Order 43 Rule 1(u) of the Code or by way of revision or petition under Article 227 of the Constitution of India but, in no circumstances, such aggrieved person would have remedy of filing Second Appeal under Section 100 of the Code.
8. Learned advocate Mr. Shah further submitted that by decision of the learned Appellate Judge, there was neither adjudication of any right of the parties nor the controversy in suit was finally decided. He submitted that if there was no adjudication of the rights of the parties or if there was no final decision about rights of the parties in the appeal, such could never be taken to be the decree passed by the learned Appellate Judge as defined by Section 2 of the Code. He read the order of the learned Appellate Judge and pointed out that the learned Appellate Judge has not taken up any other issues touching the rights of the parties nor even discussed the evidence which was there before the learned Trial Judge. He, therefore, submitted that for the first time, learned Appellate Judge has raised the issue about non-service of the statutory notice and only on this sole issue, learned Appellate Judge has remanded the entire case to the learned Trial Judge. As per his submission, even if the judgment and decree delivered in the suit on the basis of appreciation of evidence by the learned Trial Judge was quashed and set aside in its entirety, then also, the order passed by the learned Appellate Judge finally disposing of the appeal would not amount to a decree so as to make the appellant entitled to invoke the jurisdiction of this Court under Section 100 of the Code. He thus urged to dismiss the appeal by holding that the same is not maintainable.
8.1. In support of his arguments, learned advocate Shri Shah relied on the decision of the Hon'ble Supreme Court of India in the case of JEGANNATHAN Vs. Raju Sigamani & Anr. reported in 2012(4) SCALE 228.
9. In reply, learned advocate Shri Jayant B. Bhatt with Mr. Jeet Bhatt for the appellant submitted that though the learned Appellate Judge has remanded the case to learned Trial Judge, but the judgment and decree passed by the learned Trial Judge was quashed and set aside in its entirety and by quashing and setting aside the final decree passed by the learned Trial Judge, the rights which were adjudicated and concluded got vanished and therefore, for all purposes, the judgment and decree passed by the learned Appellate Judge could be taken as the decree. He submitted that on the basis of the judgment and order passed by the learned Appellate Judge, final decree was drawn. From page Nos.36-AA, 36-B, 36-C and 36-D, he pointed out that the decree drawn was in conformity with the provisions of the Code. He, therefore, submitted that the final judgment and order passed by the learned Appellate Judge was for purposes of decree drawn, against which the appellant has rightly filed this Second Appeal.
10. Learned advocate Shri Bhatt submitted that by the judgment and order passed by the learned Appellate Judge, whole proceedings of the first appeal came to an end. Not only this but the rights of the parties stood finally concluded by such judgment and order passed by the learned First Appellate Judge. He submitted that since final order passed by the learned Appellate Judge would vanish the judgment and decree in toto passed by the learned Trial Judge, the appellant is justified to invoke the powers of this Court under Section 100 of the Code.
11. Learned advocate Shri Bhatt has further submitted that for maintainability of second appeal, nature of final judgment and order under challenge would be relevant for deciding as to whether such judgment and order would amount to decree or order. He submitted that even if the learned Appellate Judge had not decided any of the issues for the purpose of final determination of the rights in the suit and still if the appeal was finally disposed of and entire matter is remanded to the learned Trial Judge, such could never be said to be an order of remand either under Rule 23, 23-A or 25 of the Code. As per his submission, the learned Appellate Judge has quashed and set aside the entire judgment and decree of the learned Trial Judge on totally non-existent issue and such could only be taken as final decree disposing of the first appeal. He submitted that if the impugned order does not fall either in Rule 23, 23-A or 25 of Order 41 of the Code, then the appellant will have no remedy of filing Appeal from Order under Order 43 of the Code. As per his submission, if the appellant will not have remedy of filing Appeal from Order under Order 43 of the Code, the appellant would be left with only remedy of filing Second Appeal before this Court. He submitted that if the order of remand is not under the Rules, as stated above, it could only be under Section 151 of the Code and such would be exercise of the powers for the purpose of finally disposing of the appeal whereunder the entire judgment and decree passed by the learned Trial Judge came to be quashed and set aside and therefore also, such impugned order could be said to be a decree and there is nothing wrong for the appellant in challenging the such decree before this Court under Section 100 of the Code.
12. Learned advocate Shri Bhatt has also submitted that this Court has already entertained the appeal by framing the substantial questions of law and ordered to finally decide the appeal while issuing notice. He submitted that since this Court has entertained the Appeal on substantial questions of law framed, vide order dated 11.6.2012, the appeal may not be disposed of on preliminary issue raised by the other side. He submitted that in such kind of situation, it is always open to this Court to decide Second Appeal as this Court is having Appellate jurisdiction and the scope and extent of power in the facts of the present case would be similar to the nature of Appeal from Order against the order of remand. He, therefore, submitted that instead of deciding this appeal on the preliminary point, the appeal may be decided on its merits as the judgment and order passed by the learned Appellate Judge cannot stand scrutiny of law. As per his submission, even if the impugned judgment and order is examined by Coordinate Bench of this Court exercising the power under Section 43 of the Code, the judgment and order passed by the learned Appellate Judge would not stand scrutiny of law as the learned Appellate Judge has remanded the matter on the issue non-existent.
13. In support of his argument, learned advocate has relied on the following judgments :-
1. In the case of P. Purushottam Reddy and Another Vs. Pratap Steels Limited reported in (2002)2 SCC 686;
2. In the case of Narayanan Vs. Kumaran and others reported in (2004)4 SCC 26;
3. In the case of Soni Dineshbhai Manilal and others Vs. Jagjivan Mulchand Choksi reported in (2007)13 SCC 293;
4. In the case of Municipal Corporation, Hyderabad Vs. Sunder Singh reported in (2008)8 SCC 485;
5. Unreported judgment of Calcutta High Court in the case of Bhairab Chandra Dutt and Ors. Vs. Kali Kumar Dutt and Ors. dated 26th May 1922
14. Before dealing with the rival contentions on the maintainability of appeal, I may refer to the judgment cited by the learned advocates for the parties.
15. In the case of Jegannathan (supra), the Hon'ble Supreme Court has held that the order of remand could be passed in three situations; viz. (1) when decree is passed on preliminary issue and such decree is reversed in the appeal, (2) when Appellate Court considers retrial of the case on the ground that further opportunities are required to be given to the parties and the issues are required to be decided afresh, that would be under Rule 23-A and (3) under Rule 25, when the Appellate Court remains in seisin of the matter and calls upon the Trial Court to send its finding on the particular issue. The Hon'ble Supreme Court has held that against such orders of remand, remedy would be under Rule 43(1)(u) of the Code and the appeal under the said order can only be heard on the grounds a second appeal is heard under Section 100 of the Code. However, the Hon'ble Supreme Court has observed that there is difference between maintainability of the appeal and scope of hearing of the appeal and if second appeal is preferred against such order, the same would not be maintainable.
16. In the case of P. Purushottam Reddy (supra), the Hon'ble Supreme Court has observed in para 10 as under:-
“10. The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23A in Order 41 of the Code of Civil Procedure by CPC Amendment Act, 1976, there were only two provisions contemplating remand by a Court of appeal in Order 41 of CPC. Rule 23 applies when the trial Court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate Court notices an omission on the part of the trial Court to frame or try any issue or to determine any question of fact which in the opinion of the appellate Court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand inasmuch as the subordinate Court can try only such issues as are referred to it for trial and having done so, the evidence recorded, together with findings and reasons therefor of the trial Court, are required to be returned to the appellate Court. However, still it was a settled position of law before 1976 Amendment that the Court, in an appropriate case could exercise its inherent jurisdiction under Section 151 of the CPC to order a remand if such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 41 of the CPC. In cases where additional evidence is required to be taken in the event at any one of the clauses of sub-rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be produced either before the appellate Court itself or by directing any Court subordinate to the appellate Court to receive such evidence and send it to the appellate Court. In 1976, Rule 23A has been inserted in Order 41 which provides for a remand by an appellate Court hearing an appeal against a decree if (i) the trial Court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate Court can exercise the same power of remand under Rule 23A as it is under Rule 23. After the amendment all the cases of wholesale remand are covered by Rule 23 and 23A. In view of the express provisions of these rules, the High Court cannot have recourse to its inherent powers to make a remand because, as held in Mahendra v. Sushila (AIR 1965 SC 365, at p. 399), it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the Court may now exercise the power of remand dehors the Rules 23 and 23A. To wit, the superior Court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20, Rule 3 or Order 11, Rule 31 of the CPC and hence it is no judgment in the eye of law it may set aside the same and send the matter back for re- writing the judgment so as to protect valuable rights of the parties. An appellate Court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23A or Rule 25 of the CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided.”
16.1. In the case of Narayanan (supra), the Hon'ble Supreme Court has examined the scope and extent of appeal under Order 43 Rule 1 Clause (u) of the Code and has observed in para 16 and 17 as under:-
“16. Mr.Krishnamurthy, learned senior counsel for the respondent cited no contrary law. He, however, reiterated that Section 100 is confined to second appeals against decrees and, therefore, cannot be invoked in an appeal against an order. It is, of course, true that Section 100 in terms applies only to appeals second to decrees, but the contention of Mr.Krishnamurthy cannot be accepted on account of language of order 43 Rule (1) clause (u). It reads as follows:-
"43 (1). Appeals from orders. An appeal shall lie from the following orders under the provisions of Section 104, namely:-
(a) -(t) (u) an order under rule 23 [or rule 23A] of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court."
17. It is obvious from the above rule that an appeal will lie from an order of remand only in those cases in which an appeal would lie against the decree if the Appellate Court instead of making an order of remand had passed a decree on the strength of the adjudication on which the order of remand was passed. The test is whether in the circumstances an appeal would lie if the order of remand where it is to be treated as a decree and not a mere order. In these circumstances, it is quite safe to adopt that appeal under order 43 Rule (1) clause (u) should be heard only on the ground enumerated in Section 100. We, therefore, accept the contention of Mr. T.L.V.Iyer and hold that the appellant under an appeal under order 43 Rule (1) clause (u) is not entitled to agitate questions of facts. We, therefore, hold that in an appeal against an order of remand under this clause, the High Court can and should confine itself to such facts, conclusions and decisions which have a bearing on the order of remand and cannot canvass all the findings of facts arrived at by the Lower Appellate Court.”
16.2. In the case of Soni Dineshbhai Manilal (supra), the issue before the Hon'ble supreme was that, when cross- objections were filed in the First Appeal and if the matter was remanded by the Appellate Court, whether in view of the Order 43 Rule 1(u) of the Code of Civil Procedure, Second Appeal was maintainable ? The Hon'ble Supreme Court has held and observed in para 23,24 and 25 as under:-
“23. It may be true that in view of Rule 1(u) of Order XVIII a second appeal was not maintainable but the scope of an appeal under Section 100 of the Code of Civil Procedure is narrower. If the appeal had been entertained upon hearing both the parties, this Court may not exercise its extra ordinary jurisdiction to set aside that order, as what matters most is to see whether substantial justice has been done to the parties and not the technicalities involved therein.
24. In a given case the appellate court in exercise of its inherent jurisdiction can convert one type of appeal to the other. Forum for preferring a second appeal as also an appeal under Order XVIII, Rule 1(u) is the same, namely the High Court. As the scope of an appeal under Order XVIII, Rule 1(u) is wider than a second appeal, the appellants on their own showing are not prejudiced in any manner, if the High Court proceeded to consider the question involved in the appeal in its impugned judgment.
25. Even substantial questions of law were framed and the same have been answered. We, however, although agree that technically a second appeal was not maintainable from one part of the judgment, keeping in view of the fact that the matter is pending for more than 40 years and in view of the nature of the dispute as also the quantum of amount involved, we are of the opinion that it is not a fit case where we should exercise our discretionary jurisdiction under Article 136 of the Constitution of India. It is now well settled that this Court may decline to exercise its jurisdiction, although it would be lawful to do so. [See Pandiyan Roadways Corporation Ltd. vs. N. Balakrishnan].”
16.3. In the case of Municipal Corporation, Hyderabad (supra), the Hon'ble Supreme Court has held and observed in para 17,18,32,33 and 34 as under:-
“17. Order 41, Rule 23 would be applicable when a decree has been passed on a preliminary issue. The appellate court must disagree with the findings of the trial court on the said issue. Only when a decree is to be reversed in appeal, the appellate court considers it necessary, remand the case in the interest of justice. It provides for an enabling provision. It confers a discretionary jurisdiction on the appellate court.
18. It is now well settled that before invoking the said provision, the conditions precedent laid down therein must be satisfied. It is further well settled that the court should loathe to exercise its power in terms of Order XLI, Rule 23 of the Code of Civil Procedure and an order of remand should not be passed routinely. It is not to be exercised by the appellate court only because it finds it difficult to deal with the entire matter. If it does not agree with the decision of the trial court, it has to come with a proper finding of its own. The appellate court cannot shirk its duties.
32. A distinction must be borne in mind between diverse powers of the appellate court to pass an order of remand. The scope of remand in terms of Order XLI, Rule 23 is extremely limited. The suit was not decided on a preliminary issue. Order XLI, Rule 23 was therefore not available. On what basis, the secondary evidence was allowed to be led is not clear. The High Court did not set aside the orders refusing to adduce secondary evidence.
33. Order 41, Rule 23A of the Code of Civil Procedure is also not attracted. The High Court had not arrived at a finding that a re-trial was necessary. The High Court again has not arrived at a finding that the decree is liable to be reversed. No case has been made out for invoking the jurisdiction of the Court under Order XLI, Rule 23 of the Code.
34. An order of remand cannot be passed on ipse dixit of the court. The provisions of Order II, Rule 2 of the Code of Civil Procedure as also Section 11 thereof could be invoked, provided of course the conditions precedent therefor were satisfied. We may not have to deal with the legal position obtaining in this behalf as the question has recently been dealt with by this Court in Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas.”
16.4. In an unreported judgment of Calcutta High Court, in the case of Bhairab Chandra Dutt and Ors. Vs. Kali Kumar Dutt and Ors. dated 26th May 1922, it has been held in para 2 as under:-
“2. On behalf of the plaintiffs, a preliminary objection has been taken that the appeal is incompetent because the order was not and could not have been made under Order XLI, Rule 23, Civil procedure Code. We are of the opinion that there is no force in this connection. The order does not purport to have been made under Order XII, Rule 23. It has been made in exercise of under power of the Court as explained the Full Bench in Abdul Karim Abu Ahmed Khan Ghaznavi v. Allahabad Bank Ltd. 41 Ind. Cas.598 : 44 C 929 : 21 C.W.N. 877 : 27 C.L.J. 49 (F.B.). The order so made is a decree which reverses the decree of the Court of first instance and deprives the plaintiffs of the valuable; right they had acquired under. The appeal is, consequently competent, not as an appeal framed under Order XLIII Rule 1, Sub-rule (u) but an appeal from a decree under Section 96 of the Code, read with Section 100, I deed, the appellants have described appeal not as an appeal from an order but as an appeal from a decree. The preliminary objection cannot sustain and must be overruled.”
17. In none of the above said cases, except the case before Calcutta High Court, there was issue about maintainability of Second Appeal, like the case on hand. Therefore, the judgments cited by learned advocates for the parties would not be of any help for deciding the issue about maintainability of the Second Appeal in the facts of the present case. The case before Calcutta High Court was prior to amendment in C.P. Code and on different fact situation and therefore, would not be of any help to decide the issue in the present case.
18. At this stage, reference is required to be made to the decision of the Hon'ble Supreme Court in the case of Mangluram Dewangan Vs. Surendra Singh and others reported in (2011)12 SCC 773. The Hon'ble Supreme Court held and observed in paragraph Nos.11,12,13 and 14 as under:-
“11. We may next consider the remedies available to an applicant whose application under Order 22 Rule 3 of the Code, for being added as a party to the suit as legal representative of the deceased plaintiff, has been rejected. The normal remedies available under the Code whenever a civil court makes an order under the Code are as under:
(i) Where the order is a ‘decree’ as defined under section 2(2) of the Code, an appeal would lie under section 96 of the Code (with a provision for a second appeal under section 100 of the Code).
(ii) When the order is not a ‘decree’, but is an order which is one among those enumerated in section 104 or Rule 1 of Order 43, an appeal would lie under section 104 or under section 104 read with order 43, Rule 1 of the Code (without any provision for a second appeal).
(iii) If the order is neither a ‘decree’, nor an appealable ‘order’ enumerated in section 104 or Order 43 Rule 1, a revision would lie under section 115 of the Code, if it satisfies the requirements of that section.
12. When a party is aggrieved by any decree or order, he can also seek review as provided in Section 114 subject to fulfillment of the conditions contained in that section and Order 47 Rule 1 of the Code. Be that as it may. The difference between a ‘decree’ appealable under section 96 and an ‘order’ appealable under section 104 is that a second appeal is available in respect of decrees in first appeals under section 96, whereas no further appeal lies from an order in an appeal under section 104 and Order 43, Rule 1 of the Code. The question for consideration in this case is whether the order dated 31.8.1996 of the trial court dismissing an application under Order 22 Rule 3 and consequently dismissing the suit is an order amenable to the remedy of appeal or revision. If the remedy is by way of appeal, the incidental question would be whether it is under section 96, or under section 104 read with Order 43, Rule 1 of the Code.
13. Section 96 of the Code provides that save where otherwise expressly provided in the body of the Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorized to hear appeals from the decision of such court. The word ‘decree’ is defined under section 2(2) of the Code thus:
“2.(2) “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include–
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
14. A reading of the definition of decree in Section 2(2) shows that the following essential requirements should be fulfilled if an order should be treated as a ‘decree’ :
(i) there should be an adjudication in a suit;
(ii) the adjudication should result in a formal expression which is conclusive so far as the court expressing it;
(iii) the adjudication should determine the rights of parties with regard to all or any of the matters in controversy in the suit; and
(iv) the adjudication should be one from which an appeal does not lie as an appeal from an order (under section 104 and order 43 Rule 1 of the Code) nor should it be an order dismissing the suit for default.
(emphasis supplied)
19. In light of the above, in the case on hand, since, by impugned order, the rights of the parties are not at all decided and since the impugned order of the learned Appellate Judge if could not be said to be an order passed under Rule 23, 23-A and 25 of Order 41 of the Code, and could be said to have been passed by exercising the inherent power under Section 151 of the Code, then also such would remain to be an order and not a decree. Therefore, in my view, this Second Appeal challenging the impugned order passed by the learned Appellate Judge is not maintainable. In fact, this view of mine is also fortified by a decision of Full Bench of Orissa High Court in the case of Dinamani Debi Vs. Paramananda Choudhury and another reported in AIR 1980 Orissa 177. The issue in the said case was somewhat similar to the preliminary issue raised in the present appeal and the Full Bench of the Orissa High Court has held that if the order of remand was not made under Rule 23, 23-A or 25 of Order 41 of the Code, the same would be referable under Section 151 of the Code and the order made under Section 151 of the Code does not come within the ambit of Section 104 of the Code and considering the plain language used in this Section, it is obvious that if an order is passed under Section 151 of the Code, no appeal lies under Order 43 Rule 1 of the Code. Order of remand under Section 151 is appealable only when it amounts to a decree. Where the 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 decree and must be treated as an order. Accordingly, on the basis of the above conclusion, the Full Bench of Orissa High Court has held that if order of remand under Section 151 of the Code does not conclusively decide the rights of the parties, Second Appeal is not maintainable. Only remedy available to them would be to approach the High Court by way of revision application. Learned advocate for the appellant though made strenuous efforts to take different view of the matter, but considering the clear provisions of Order 41 and Section 151 of the Code and in the context of fact situation, since by order of the Appellate Court, rights of the parties are not finally decided, I hold that the Second Appeal against the impugned judgment and order passed by the learned Appellate Judge is not maintainable. In view of this position, the appeal is required to be dismissed on this preliminary point.
20. Though learned advocate for the appellant has submitted that the appeal was already entertained and notice was issued for the purpose of final disposal and this Court should not dismiss the appeal on the issue of maintainability, it is required to be noted and as held by the Hon'ble Supreme Court in the case of S.B. Minerals Vs. MSPL Limited reported in (2010)12 SCC 24, that an order admitting a second appeal is neither a final order nor an interlocutory/ interim order. It does not amount to a judgment, decree, determination, sentence or even 'order' in the traditional sense. It does not decide any issue but merely entertains an appeal for hearing. Therefore, the order whereunder the substantial questions of law were framed and notice was issued for final disposal could not be taken as a final order so as to prevent this Court from deciding the maintainability of the appeal, especially when the order framing substantial question of law and issuing notice for final disposal was passed ex-parte and thereafter by subsequent order, the appeal was placed for consideration of preliminary issue about maintainability of the appeal at the instance of the learned advocate for the respondents. Therefore, the submission and request made by the learned advocate for the appellant to hear the appeal on merits instead of deciding the same on the issue of maintainability cannot be accepted and is not accepted.
21. In the result, the appeal is dismissed as not maintainable under Section 100 of the Code.
22. It is needless to observe that it is always open to the appellant to take any other remedy available against the impugned judgment and order passed by learned Appellate Judge.
23. In view of the dismissal of the Second Appeal, no orders are required to be passed in the Civil Application and the same is accordingly disposed of.
omkar Sd/-
(C.L. SONI, J.)