JUDGMENT P. Subramonian Poti, J. 1. Since the question brought to my notice arises very often in cases coming up before this Court, I think it is necessary to advert to the matter in a little detail. It concerns the question whether this second appeal filed as a second appeal should be treated as one such. The petition before me is one to dispense with the production of the Lower Court's decree. A copy of the decree was not produced along with appeal. According to counsel, though the Court below has passed a decree that Court, when approached for a copy of the decree, has not issued such copy, presumably on the basis of R.192 of the Kerala Civil Rules of Practice. That rule reads:- "In execution appeals and in appeals where the matter is remanded for retrial, no decree need be prepared but a table of costs shall be appended to the order." According to counsel Sri. Govinda Warrier, who, I must say, was of considerable assistance to me in the case, though that Court has treated this as a case where no decree ought to be drawn up he would be prejudiced if he does not file an appeal against the decision of the Court below and that is why he has come up in Second Appeal. According to him, since, in the circumstances pointed out, the Court below which had a duty to issue a copy of the decree to him has not so issued the copy, this Court, in exercise of its inherent powers, would only be doing justice to the party by dispensing with the production of the copy of the Lower Court decree. 2. The question raised necessarily involves a question rather difficult to answer. O.41 Rule i is a provision which appears to be mandatory in so far as it requires that the memorandum shall be accompanied by a copy of the decree appealed from. Whether in a case in which copy of the decree is to be filed by the party the Court could, in exercise of its inherent powers, dispense with the production of the copy is the question which I may have to decide in the event I treat this case as one in which an appeal lies. Whether in a case in which copy of the decree is to be filed by the party the Court could, in exercise of its inherent powers, dispense with the production of the copy is the question which I may have to decide in the event I treat this case as one in which an appeal lies. But I do not think for the purpose of this case it is necessary to consider this because as I will presently show I do not think this is a case where a Second Appeal should have been filed. The decision of the Court below is one which, according to me, would fall within the scope of O.41 R.23, Civil Procedure Code, and if that be the case, it is an order which is appealable under O.43 R.i(u) of the Code of Civil Procedure. 3. According to counsel, in a case where the main issues in a suit are decided by a Court and the matter is remitted back to the Trial Court to enable that Court to decide the case in accordance with the decision in the appeal, there is really an adjudication as between the parties finally on the main issues for decision and this is an adjudication on the rights of the parties so far as the question is covered by those issues. This adjudication, it is contended, is sufficient to characterise the decision as a decree within the meaning of the term as defined in S.2(2) of the Code of Civil Procedure. This calls for examination here. 4. A decree is defined in S.2(2) as follows:- "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 S.47 or S.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. Explanation: A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. Explanation: A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final:" A judgment is defined in S.2(9) as: " 'Judgment' means the statement given by a Judge of the grounds of a decree or order" and R.2(14) defines order as meaning:- "The formal expression of any decision of a Civil Court which is not a decree". O.41 R.23 is in the following terms:- "Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, or where the Appellate Court in reversing or setting aside the decree under appeal considers it necessary in the interests of justice to remand the case, the Appellate Court may by order remand the case, and may 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 suit; and the evidence (if any) recorded during the original trial, shall, subject to all just exceptions be evidence during the trial after remand". The provision which I have extracted above is that in the Code of Civil Procedure as applicable to the State of Kerala. The scope of remand under O.41 R.23 in the Code of Civil Procedure applicable to the State is much wider than the corresponding provision in the Central Code. I may also have to refer here to O.43 R.i(u) which confers the right of appeal against an order under O.41 R.23. That rule reads:- "i. An appeal shall lie from the following orders under the provisions of S.104, namely:- (u) an order under R.23 of O.41 remanding a case, where an appeal would lie from the decree of the Appellate Court". 5. That rule reads:- "i. An appeal shall lie from the following orders under the provisions of S.104, namely:- (u) an order under R.23 of O.41 remanding a case, where an appeal would lie from the decree of the Appellate Court". 5. The Controversy being whether a decision such as the one in appeal before this Court now, namely, that which decides substantially the main issues in the suit and remits the case to the Trial Court for determination in accordance with such issues is a decree or not I will have to consider this with reference to the definition of decree and also the terms of O.41 R.23. It is clear from O.43 R.i(u) that where if the Court had passed a decree there would have been an appeal from the decree the Court had not passed such a decree but has passed an order under O.41 R.23, then there is a right of appeal against that order. In other words, the rule clearly indicates that an order passed under R.23 of O.41 is not a decree in the case. This is because the definition of the decree indicates that it must be a formal expression of an adjudication conclusively determining the rights of the parties. The determination may be with regard to all or any of the matters in controversy. Is the decision on an issue a conclusive determination of the rights of parties within the meaning of this definition? I have no hesitation to say it is not. The issues are framed in order to enable the Court ultimately to adjudicate upon the rights which call for adjudication. The question ultimately is whether the parties are entitled to the reliefs that they have respectively claimed in the proceedings and it is that determination which amounts to a decree because that conclusively determines the rights of parties. The adjudication on issues is only a step preliminary to the adjudication of the rights of parties in the suit. The question ultimately is whether the parties are entitled to the reliefs that they have respectively claimed in the proceedings and it is that determination which amounts to a decree because that conclusively determines the rights of parties. The adjudication on issues is only a step preliminary to the adjudication of the rights of parties in the suit. Therefore, any findings on the various questions that may arise in the suit may be findings which may be relevant in ultimately determining whether the parties are entitled to the reliefs they have sought from the Court and it is only when the Court formally expresses its decision on the question of the reliefs sought in the said proceedings that there is a formal adjudication on the issues with regard to rights of parties in the suit. That alone would amount to a decree. Therefore, quite consistent with what is indicated in O.43 R.i(u), I would say that any determination falling within the scope of O.41 R.23 could not certainly be said to be a decree. 6. O.41 R.23 deals with cases where (i) the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal and (2) where the Appellate Court in reversing or setting aside the decree under appeal considers it necessary in the interests of justice to remand the case. In either case, it is only when the Appellate Court, by order, remands the case and perhaps further directs what issue or issues shall be tried in the case so remanded with direction to proceed to determine the suit that the rule becomes applicable. In other words, the rule indicates that pursuant to the remand the Court whose decree is appealed from must proceed to determine the suit. The determination of the suit is yet to come and that depends upon the adjudication by that court. Such adjudication consequent on the remand results in the decree. Of course, there may be cases where the Appellate Court, itself passes a decree but in regard to certain other matters it directs the Trial Court to determine the suit. In such cases, of course, the decree of the Appellate Court may be appealable. We are not concerned with such a case here. Of course, there may be cases where the Appellate Court, itself passes a decree but in regard to certain other matters it directs the Trial Court to determine the suit. In such cases, of course, the decree of the Appellate Court may be appealable. We are not concerned with such a case here. That is because the passing of a decree is not merely decision on the issues arising in the suit but adjudication which would amount to determination of the rights of parties. 7. Counsel has raised a doubt as to whether he may not be precluded from challenging the propriety or correctness of the findings entered on the various issues in the appeal filed under O.43 R.i. I do not see anything in the provisions of the Code of Civil Procedure restricting or limiting the right of an appellant in regard to the attack to the order appealed against. The correctness of the order is open to challenge and there is no reason why the scope of challenge in an appeal against an order under O.41 R.23 should be limited to the correctness or propriety of the remand. It is quite apparent from the provisions of S.105(2) that a party who does not attack an order which is appealable is precluded from making an attack later which itself indicates that it is open to such a party to attack the order on merits. In such appeal the whole question of the correctness of the order of the Court below is open to challenge and therefore there is no scope for any grievance on the ground that the party is unable to challenge the findings on the issues. The position being what I have pointed out above, there is no scope for grievance that the Court below has not prepared a decree. The appeal would lie as a C.M. Appeal to this Court. The party is free to move for conversion of this petition into a Civil Miscellaneous Appeal if he is so advised. The petition is dismissed.