JUDGMENT D.N. Roy, J. - These two First Appeals From Order, the one by Plaintiff and the other by the Defendant, arise out of an order of remand passed by the lower appellate court on the 3rd of October, 1952. The suit was for the recovery of a certain sum of money. The Defendant-firm dealing in cloth at Agra placed an order on the 7th of February, 1947, with the Plaintiff-firm Gorakhpur for the purchase of two hundred pieces of malmal cloth at market rate with directions that the said cloth may be sent to them at Agra. It was alleged by the Plaintiff that in compliance with that order the Plaintiff immediately purchased eighty-six pieces of malmal cloth and booked them to Agra. The railway receipt along with the invoice of goods was sent by the Plaintiff to the Central Bank of India, Agra, with direction that they may be handed over to the Defendant on the payment of the price. The Plaintiff contended that the Defendant failed to take delivery of the goods and pay the price, with the result that the Plaintiff had to resell the goods on the 2nd of July, 1947, after giving a notice to the Defendant and in this transaction the Plaintiff suffered a loss of Rs. 987/15/9. The Plaintiff accordingly claimed that sum together with interest reckoned at six per cent. Per annum. 2. The Defendant pleaded that the court at Gorakhpur where the suit was instituted had no jurisdiction to entertain the claim; that the order had been cancelled by the Defendant on the 7th of February, 1947; and that the damages claimed by the Plaintiff were excessive and inadmissible, in a much as the Plaintiff had had no business to keep those goods up to July, 1947, unsold; and that in any view of the matter the Plaintiff ought to have resold the goods by the 17th of February, 1947, when according to the Plaintiff the Defendant had refused to take delivery. The trial court held that as the control was made at Gorakhpur, part of the cause of action arose there and the court at Gorakhpur had jurisdiction to try the suit. The trial court held that as the control was made at Gorakhpur, part of the cause of action arose there and the court at Gorakhpur had jurisdiction to try the suit. It further held that in compliance with the Defendant's order, the Plaintiff had despatched eighty-six pieces of malmal cloth to the Defendant and as the cancellation of the order by the Defendant was not received by the Plaintiff before the 14th of February, 1947, and the goods had been despatched by rail before that date, the Plaintiff was entitled to recover the entire loss caused to him by the sale of goods on the 2nd of July, 1947, and he was further entitled to interest and other incidental expenses incurred by him. Upon those findings the suit was decreed in toto. 3. As against that decision an appeal was preferred by the Defendant and the lower appellate court concurred in the view of the trial court that the Munsif at Gorakhpur had jurisdiction to entertain the suit; that the Plaintiff had despatched eighty-six pieces of malmal cloth in furtherance of the order placed by the Defendant; that before the date of the despatch the Plaintiff had not received any intimation from the Defendant about the cancellation of the order; that the Defendant was bound to take delivery of the goods; and that the crucial date which will determine the question of damages would be the 2nd of March, 1947. The lower appellate court further found that since there was no evidence produced by the parties about the market rate prevailing on the 2nd of March, 1947, and since certain objections raised by the Defendant regarding certain items of expenditure charged by the Plaintiff had not been disposed of by the trial court, the only alternative left to the court was to remand the suit for determination of the proper issues. 4. From that order of remand Appeal No. 344 of 1952 has been preferred in this Court by the Defendant, and Appeal No. 28 of 1953 has been preferred by the Plaintiff. 5. A preliminary point has been raised by Mr. S.N. Misra appearing for the Plaintiff that the order of remand was passed under the provisions of Section 151 of the Code of Civil . Procedure and consequently that order is not appealable. 5. A preliminary point has been raised by Mr. S.N. Misra appearing for the Plaintiff that the order of remand was passed under the provisions of Section 151 of the Code of Civil . Procedure and consequently that order is not appealable. If that point is allowed to prevail, it will immediately cut at the very root of the appeal preferred by the Plaintiff. Mr. Misra has relied upon the Full Bench decision of this Court in Bishwanath Singh v. Sheikh Abdul Jabbar 1947 A.W.R. (H.C.) 360. In that case it was laid down that when an order of remand is passed by an appellate court under its inherent powers which are recognised and saved by the provisions of Section 151 of the Code of Civil Procedure, the order is not open to appeal. On the other hand, it has been contained by Mr. Jagdish Sahai, appearing for the Defendant that the order of remand was Under Rule 23 of Order 41 of the CPC and the order is consequently appealable. Rule 23 of Order 41 which is applicable to this case is in the following terms: Where an appellate court has reversed a decree and all questions arising in the case have not been decided, it may, if it thinks fit, by order remand the case and further direct what issue or issues shall be tried in the case so remanded and shall send a copy of its judgment and order to the court from whose decree the appeal is preferred with directions to readmit the suit under its original number in the register of Civil Suits and proceed to determine the suits. 6. u/s 104 of the CPC an appeal shall lie from certain orders enumerated therein and save as otherwise expressly provided in the body of the Code or by any law for the time being in force, from no order orders. Section 104(1)(i) of the Code provides for an appeal against an order made under rules from which an appeal is expressly allowed by rules. Under Order 43, Rule 1(u) there is an appeal from an order under Rule 22 of Order 41 remanding a case where an appeal would lie from the decree of the appellate court. Section 104(1)(i) of the Code provides for an appeal against an order made under rules from which an appeal is expressly allowed by rules. Under Order 43, Rule 1(u) there is an appeal from an order under Rule 22 of Order 41 remanding a case where an appeal would lie from the decree of the appellate court. It follows that: there would be an appeal from the order of remand with which we are concerned in this case if that order was passed under the provisions of Order 41, Rule 23, otherwise an appeal would lie. It has been held in various cases following the decision in Ghuznavi v. The Allahabad Bank Limited ILR 44 Cal. 929, that in some circumstances an order of remand may be passed in exercise of the inherent powers of a court recognised by Section 151 of the Code of Civil Procedure, but if such an order is passed there can be no appeal from it under any of the provisions of the Code. And it was that very view which was adopted by the Full Bench of this Court in Bishwanath Singh v. Sheikh Abdul Jabbar 1947 A.W.R. (H.C.) 360 cited above. The power of remand given to the appellate court Under Rule 23 of Order 41 is limited by the conditions precedent, one being that the decree of the trial court is reversed, and the second being that all questions arising in the case have not been decided by the trial court. In the present case both these conditions precedent were present. Consequently the order of remand passed by the lower appellate court was an order Under Rule 23 of Order 41 and that order is appealable Under Order 43 Rule 1 (u) of the Code of Civil Procedure. 7. On the question of jurisdiction there can be no doubt whatsoever that the court at Gorakhpur had the jurisdiction to entertain the suit. The cause of action arose partly at Gorakhpur. In a suit for damages for breach of contract the cause of action consist of the making of the contract and of its breach, so that the suit may be filed either at the place where the contract was made or at the place where it should have been performed. The cause of action arose partly at Gorakhpur. In a suit for damages for breach of contract the cause of action consist of the making of the contract and of its breach, so that the suit may be filed either at the place where the contract was made or at the place where it should have been performed. In the present case it cannot be disputed that the alleged contract was made at Gorakhpur where the offer of the Defendant was made and accepted by the Plaintiff. The plea of want of jurisdiction has therefore no substance whatsoever. In my opinion the order of remand was perfectly good and sound and it cannot be as sailed by the parties. 8. Mr. Jagdish Sahai has contended that, having regard to the provisions of Section 31, 34, 37 and 38 of the Indian Sales of Goods Act (IX of 1930), the Defendant could refuse to take delivery of part of the goods irrespective of the question as to whether the contract had been cancelled in proper time or not; and he has urged that in this view of the matter the Plaintiff was not entitled to any damages. He has, however, conceded that this plea was not specifically taken either in the court of first instance or in the lower appellate court. Section 31 of the Indian Sale of Goods Act provides that it is the duty of the seller to deliver the goods and of the buyer to accept and pay for them in accordance with the terms of the contract of sale. Section 34 lays down that a delivery of part of goods, in progress of the delivery of the whole, has the same effect, for the purpose of passing the property in such goods, as a delivery of the whole; but the delivery of part of the goods with an intention of serving it from the whole does not operate as a delivery of the remainder. Section 37, inter-alia, lays down that where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may reject them; but if the buyer accepts the goods so delivered, he shall pay for them at the contract rate. The provisions of this section are, however, subject to any usage of trade, special agreement or counsel of dealing between the parties. The provisions of this section are, however, subject to any usage of trade, special agreement or counsel of dealing between the parties. Section 38 then goes on to say that unless otherwise agreed, the buyer of goods is not bound to accept delivery thereof by instalments; and that where there is (sic) contract for the sale of goods to be delivered by stated instalments; which are to be separately paid for, and the seller makes no delivery or defective delivery in respect of one or more instalments, or the buyer neglects or refuses to take delivery of or pay for one or more instalments, it is a question in each case depending upon the terms of the contract and the circumstances of the case whether the breach of contract is a repudiation of the whole contract, or whether it is a severable breach giving rise to a claim for compensation, but not to a right to treat the whole contract as repudiated. In his grounds of appeal Mr. S.N. Misra particularly made reference to the Indian Sale of Goods Act, and contended that the lower appellate court erred in law in not applying the provisions of this Act, and was misled by the provisions of the Contract Act. In order to entitled a party to the benefits of Section 31, 34, 37 and 38 of the Indian Sale of Goods Act certain facts have got to be alleged and proved. Mr. Jagdish Sahai has conceded that it was in error on the part of his client not to have raised these questions specifically by taking specific pleas. But his contention further is that since this matter also involves a question of law which can be raised by the Defendant at any stage, he would make an application to the trial court for amendment of the pleadings in order to bring into prominence the factors necessary for determination under the aforesaid sections of the Indian Sale of Goods Act. The question will, however, be determined by the trial court when an application for amendment is made and the trial court will of course bear in mind the well recognised principles governing Amendment with special reference to the sections of the Indian Sale of Goods Act upon which the Defendant intends to rely. 9. The question will, however, be determined by the trial court when an application for amendment is made and the trial court will of course bear in mind the well recognised principles governing Amendment with special reference to the sections of the Indian Sale of Goods Act upon which the Defendant intends to rely. 9. So far as the present appeals are concerned I am of opinion that there is no merit in them and I accordingly dismiss them with costs.