Inherent power of remand preserved where justice requires it; remands not on preliminary points are not appealable.

Section 107 of the Code of Civil Procedure was treated as referring to Order 41 Rule 23, but not as exhausting the court's authority to remand, because Section 151 preserves an inherent power exercisable ex debito justitiae where justice requires it. A remand not made on a preliminary point was held not to attract an appeal under the relevant procedural rule. The court further treated admissibility or exclusion of evidence, including whether a settlement as agent bound a party as partner, as going to the merits rather than a preliminary point; such remands were therefore not within that category.

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Issues: (i) Whether the Court possessed an inherent power to remand a matter apart from Order 41 Rule 23 of the Code of Civil Procedure. (ii) Whether an order of remand is appealable when the remand is not on a preliminary point. (iii) Whether a remand based on the admissibility or exclusion of evidence can be treated as a remand on a preliminary point.

Issue (i): Whether the Court possessed an inherent power to remand a matter apart from Order 41 Rule 23 of the Code of Civil Procedure.

Analysis: Section 107 of the Code of Civil Procedure was treated as referring in terms to Order 41 Rule 23, but not as exhausting the Court's authority to remand. Section 151 was read as preserving inherent powers exercisable ex debito justitiae where the rules did not specifically confer the power. Earlier decisions were followed in support of the view that the existence of an express procedural power does not exclude a cautious exercise of inherent power where justice requires it.

Conclusion: The Court held that an inherent power of remand exists apart from Order 41 Rule 23 of the Code of Civil Procedure.

Issue (ii): Whether an order of remand is appealable when the remand is not on a preliminary point.

Analysis: The Court proceeded on the basis that where a remand is not referable to Order 41 Rule 23 on a preliminary point, the appellate remedy does not survive. The existence of an inherent power of remand also meant that a remand order could not be treated as wrongly made under the rule merely to create a right of appeal.

Conclusion: The Court held that no appeal lies against a remand order that is not made on a preliminary point.

Issue (iii): Whether a remand based on the admissibility or exclusion of evidence can be treated as a remand on a preliminary point.

Analysis: A preliminary point was understood as one that prima facie does not affect the merits of the case. The Court held that a ruling on the admissibility of evidence, including whether a settlement as agent bound a party as partner, was part of the merits and not collateral to them. A reversal directing admission of excluded evidence was likewise not a disposal on a preliminary point.

Conclusion: The Court held that such remands were not on preliminary points.

Final Conclusion: The remand orders were sustained in principle, the appellate challenge failed, and all the appeals were dismissed with costs.

Ratio Decidendi: A remand not resting on a preliminary point is not appealable under the relevant procedural provision, and the Court may exercise inherent power of remand where justice requires it even when the express rule does not apply.

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