JUDGMENT G.D. Saxena, J. 1. This order shall govern the disposal of aforesaid two appeals (Misc. Appeal No. 260/2012 and Misc. Appeal No. 261/2012). These appeals under Section 104 read with Order 43 Rule 1(u) of C.P.C. through inter-pleader have been submitted against a common order dated 24th January 2012 in Civil Appeal No. 26/2009 and 27/2009 of the Additional District Judge, Gohad, district Bhind, allowing thereby an application preferred by the appellant under Order XXII Rule 10 C.P.C. and allowing her to be impleaded as a defendant while making remand of the entire case to the learned trial court for afresh decision, after setting aside the impugned judgment and decree dated 31st August 2009. Being aggrieved, the appellant has come to this court with certain reliefs. 2. Bare facts necessary for determination of this controversy can now be stated. The plaintiffs/respondents No. 1 to 3 instituted a suit against defendants/respondents No. 4, 5 and 6 (in Misc. Appeal No. 260/12) for declaration of title and permanent injunction over the agricultural land comprised in Survey Nos. 33, 51, 62, 430, 432, 434, 1004, 1007, 1008 and 1210, total area 3.36 hector, situated in village Achaya Tehsil Gohad, district Bhind which was subject matter of the suit. The said disputed land earlier was owned by Gangaram, father of the plaintiffs and Tej Singh. After death of Gangaram, plaintiffs and Tej Singh became the owners of the land with equal share of 1/4th in the suit property. The suit land was partitioned in the year 1994 and pursuant thereto the mutation proceedings took place. It was alleged that by the defendant No. 1 that she was not given share as per the agreement made between her father and the plaintiff Harvilas. On the contrary, plaintiff Harvilas pleads that the father of defendant No. 1 being Karta of the family made partition of the property which was not proper and he played fraud with his rights. In such circumstances, both the parties filed separate suits against each other. However, the learned trial Judge by the impugned judgment dated 31st August, 2009 did not find the partition proved between the parties contesting the suit, hence, left the parties to proceed for getting their partition before the competent court. Being aggrieved, both the parties filed two separate appeals and challenged the above impugned findings. However, the learned trial Judge by the impugned judgment dated 31st August, 2009 did not find the partition proved between the parties contesting the suit, hence, left the parties to proceed for getting their partition before the competent court. Being aggrieved, both the parties filed two separate appeals and challenged the above impugned findings. During hearing, the appellant- intervener filed the application under Order XXII Rule 10 of C.P.C. with a prayer that she be joined with seller Savitridevi in pending appeals. Said prayer was allowed but in a different manner. The appellant was allowed to be impleaded as defendant in the appeals but instead of deciding the appeals on merits, the lower appellate court remanded the case back to the trial court for taking afresh decision after affording opportunity to the appellant to file written statement and produce evidence. 3. Learned counsel for the appellant invites attention to impugned order dated 24/1/12 to demonstrate that it is in fact a remand order and as such provision of order XLIII Rule 1(u) C.P.C. will apply and appeal against such an order is the only remedy. It is further submitted that the first appellate court instead of deciding the case on merits, passed the impugned order. Accordingly, it is prayed that by allowing the appeals the order of remand may be set aside and the appellate court may be directed to implead the appellant in the appeals filed by the parties with seller Savitridevi and thereafter same may be heard on merits. In support of the submissions he has relied upon the judgments reported AIR 1953 SC 837 in this respect in the cases of P. Purushottam Reddy & another Vs. Pratap Steels Ltd. (2002) 5 SCC 686, H.P. Vedavyas Sachar Vs. Shivashabkar & another (2009) 8 SCC 231 as well as of this court in the case of Dr. Arvind Vs Mannalal, 2009(1) MPLJ 620 . 4. In the case of P. Purushottam Reddy (supra), the Hon. Apex court while dealing with the matter has observed as follows:- "Prior to the insertion of Rule 23-A in Order 41 of the Code of Civil Procedure by the CPC Amendment Act, 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 CPC. 4. In the case of P. Purushottam Reddy (supra), the Hon. Apex court while dealing with the matter has observed as follows:- "Prior to the insertion of Rule 23-A in Order 41 of the Code of Civil Procedure by the CPC Amendment Act, 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 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. In 1976, Rule 23-A 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 23-A as it is under Rule 23. After the amendment, all the cases of wholesale remand are covered by Rules 23 and 23-A. 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 Manilal Nanavati v. Sushila Mahendra Nanavati (AIR 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 Rules 23 and 23-A. 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 41 Rule 31 CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for rewriting 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 23-A or Rule 25 CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided. 5. As against this, learned counsel for the respondent has invited attention to provisions of Order 41 Rule 23 of C.P.C. to point out when remand is possible. He states that by the impugned order here, the learned Additional District Judge has not in appeal before him interfered with the "decree" passed by lower Court and as such, provisions of Order 43 Rule 1(u) are not attracted. Apart from it, he submits that in both the appeals the appellant did not frame the substantial question of law as per requirement of Section 100 of C.P.C., so this miscellaneous appeals are not tenable. In support, learned counsel placed reliance on the decision in the case of Narayanan Vs. Kumaran, (2004) 4 SCC 26 . 6. In case of Narayaman (supra) it has been held as follows:- 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 were 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. 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. 7. Before proceeding further, it will be necessary to reproduce relevant provisions of Order XLI, Rule 23 and 23Aof Civil Procedure Code. Said provisions read: 8. Rule 23. Remand of case by Appellate Court.-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, the Appellate Court may, if it thinks fit, 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 re-admit 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. Rule 23 A. Remand in other cases-Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23. 9. A perusal of Rule 23 or Rule 23A reveals that the appeal before Appellate Court has to be from a decree passed by lower Court. 10. On coming back to the case, it is noted that before the date of judgment of the suit on 24/8/09, half of the share of the disputed land was soled by Smt. Savitribai in favour of the appellant- Smt. Pushpa Devi vide sale-deed and the possession was also handed over to her. 10. On coming back to the case, it is noted that before the date of judgment of the suit on 24/8/09, half of the share of the disputed land was soled by Smt. Savitribai in favour of the appellant- Smt. Pushpa Devi vide sale-deed and the possession was also handed over to her. So after sale of the property, appellant has acquired the right and title over it. Both parties of the suits being aggrieved by the judgment passed in civil suits filed separate appeals before the appellate court. During pendency of appeals, appellant- Smt. Pushpa Devi filed an application under Order XXII Rule 10 of C.P.C. for impleading her in the appeals alongwith aforesaid seller Smt. Savitribai. 11. In the case of Radheshyam Vs. Bhagwanlal 1977 JLJ SN 83, this Court, following the decision in the case of Saila Bala Vs. Birmala Sundari ( AIR 1958 SC 394 ), observed that Rule 10 of Order XXII, is enacted with the object that in case of assignment, creation or devolution of interest, the suit may be continued by or against a person whom or upon whom such interest has come or devolved. It is true that the Court has been invested with discretion, but like any other discretion, it must be exercised judicially. This provision enable a party to apply to the Court for being made a party so that he may safeguard his own interest by prosecuting the suit as he himself desires. It was further observed that Order XXII, Rule 10 does not cast any obligation on the transferee to become a party to the suit because he may think that his interests are protected by the original defendant. In other words, the transferee is not obliged to apply for being made a party. The fact remains that a decree to be passed in that suit against the original defendant will operate against the transferee as well. Thus, essentially it is the choice of the transferee whether to apply for leave of the Court or not. In other words, the transferee is not obliged to apply for being made a party. The fact remains that a decree to be passed in that suit against the original defendant will operate against the transferee as well. Thus, essentially it is the choice of the transferee whether to apply for leave of the Court or not. A Division Bench of this Court, in the case of Devisahai v. Govindrao 1966 JLJ 32 : ( AIR 1965 MP 275 ), while considering the case of addition of party of transferee pendente lite at appellate stage, has observed that so far as allowing a party to be impleaded under Order I, Rule 10(2) or Order XXII, Rule 10, or Order XLI, Rule 20 is concerned the discretion has to be exercised by the Court judicially. It was further observed that there is no bar of the transferee pendente lite being impleaded as a party under Order XXII, Rule 10 at the appellate stage. However, the question will be one of the due diligence. But, if he is guilty of unreasonable delay and waits and watches the proceedings without making an attempt to be impleaded and later on files an application at a very late stage, unless he explains the delay or shows some justifiable reason for having remained silent, his prayer to be impleaded at a late stage can evidently not be allowed. 12. In Kamta Prasad Vs. Vidhyawati ( AIR 1994 M.P. 181 ) this court answered the relevant question covering the present case in the following terms:- In the opinion of this Court, a reading of the two provisions of Order XXII, Rule 10 and Order I, Rule 10, CPC, it is amply clear that under Order XXII, Rule 10, if the interest is assigned of the subject-matter of the suit, the assignee may apply to be impleaded as a party even at an appellate stage and if a person is vitally interested in the litigation and ultimate decree which may be passed in the said litigation vitally affecting his rights, he may apply to be added as a party under Order I, Rule 10(2), CPC. However, the Court, while considering the application under Order I, Rule 10(2) or under Order XXII, Rule 10, has to exercise the discretion judicially. 13. However, the Court, while considering the application under Order I, Rule 10(2) or under Order XXII, Rule 10, has to exercise the discretion judicially. 13. Recently, the Hon. Apex Court has observed in Jagannathan Vs Raju Sigamani (2012) 5 SCC 543 as follows:- 6. Order 41 Rule 23 is invocable by the appellate court where the appeal has arisen from the decree passed on a preliminary point. In other words, where the entire suit has been disposed of by the trial court on a preliminary point and such decree is reversed in appeal and the appellate court thinks proper to remand the case for fresh disposal. While doing so, the appellate court may issue further direction for trial of certain issues. 7. Order 41 Rule 23-A has been inserted in the Code by Act 104 of 1976 w.e.f. 1-2-1977. According to Order 41 Rule 23-A of the Code, the appellate court may remand the suit to the trial court even though such suit has been disposed of on merits. It provides that where the trial court has disposed of the suit on merits and the decree is reversed in appeal and the appellate court considers that retrial is necessary, the appellate court may remand the suit to the trial court. 8. Insofar as Order 41 Rule 25 of the Code is concerned, the appellate court continues to be in seisin of the matter; it calls upon the trial court to record the finding on some issue or issues and send that finding to the appellate court. The power under Order 41 Rule 25 is invoked by the appellate court where it holds that the trial court that passed the decree omitted to frame or try any issue or determine any question of fact essential to decide the matter finally. The appellate court while remitting some issue or issues, may direct the trial court to take additional evidence on such issues. 9. Insofar as the present case is concerned, the trial court had disposed of the suit on merits and not on a preliminary issue. The first appellate court set aside the judgment and decree of the trial court and directed the trial court to decide the suit afresh after giving parties an opportunity to lead evidence-oral as well as documentary. 9. Insofar as the present case is concerned, the trial court had disposed of the suit on merits and not on a preliminary issue. The first appellate court set aside the judgment and decree of the trial court and directed the trial court to decide the suit afresh after giving parties an opportunity to lead evidence-oral as well as documentary. The nature of the order passed by the appellate court leaves no manner of doubt that such order has been passed by the appellate court in exercise of its power under Order 41 Rule 23-A of the Code. 10. Order 43 of the Code provides for appeals from orders. Clause (u) of Rule 1 Order 43 was amended consequent upon insertion of Rule 23-A in Order 41 w.e.f. 1-2-1977. It reads as under: 1. Appeals from orders.- An appeal shall lie from the following orders under the provisions of Section 104, namely- xxxx xxxx xxxx (u) an order under Rule 23 or Rule 23-A of Order 41 remanding a case, where an appeal would lie from the decree of the appellate court; It is clear from the above provision that an order of remand passed under Order 41 Rule 23-A is amenable to appeal under Order 43 Rule 1(u) of the Code. 11. The High Court relied upon a decision of this Court in Narayanan v. Kumaran in holding that civil miscellaneous appeal from the order of remand was not maintainable. The High Court was clearly in error. What has been held by this Court in Narayanan is that an appeal under Order 43 Rule 1(u) should be heard only on the ground enumerated in Section 100 of the Code. In other words, the constraints of Section 100 continue to be attached to an appeal under Order 43 Rule 1(u). The appeal under Order 43 Rule 1(u) can only be heard on the grounds a second appeal is heard under Section 100. 12. There is a difference between maintainability of an appeal and the scope of hearing of an appeal. The High Court failed to keep in view this distinction and wrongly applied the case of Narayanan in holding that miscellaneous appeal preferred by the appellant was not maintainable. 14. 12. There is a difference between maintainability of an appeal and the scope of hearing of an appeal. The High Court failed to keep in view this distinction and wrongly applied the case of Narayanan in holding that miscellaneous appeal preferred by the appellant was not maintainable. 14. Keeping in view the law and in the light of the definition aforesaid, it is clear that the Additional District Judge who decided appeals and delivered impugned order is covered there under. It is to be noted that such judgment of District Court has been artificially treated as decree with further provision of appeal against it. To attract provisions of Order 41 Rule 23 or Rule 23A, present appellant has to demonstrate that the Additional District Judge was considering validity or otherwise of "decree" and, in that event only, present appeal against order can be held that to be maintainable. Moreover, perusal of impugned order reveals that it is not only an order of remand but thereby set aside the impugned judgment and decree without consideration on merits. Thus, a retrial as required by Order 41, Rule 23A is not warranted in the facts and circumstances of the case. Therefore, this court finds that remedy of filing appeal against order is available to the appellant. Hence after analysing the principles underlying the object, the findings of the appellate court by setting aside the judgment and decree of the trial court, while remanding back the case for fresh trial are not in consonance with the provisions of law mentioned above. The appellate court ought to have addressed itself to these vital points and was expected to proceed with the case on merits. Consequently, the appeals are hereby allowed and the findings of the appellate court in remanding the case back for fresh trial are set aside. It is directed that appellate court shall restore the appeals to their original numbers and after affording opportunity of hearing to the parties and the inter-pleader decide the appeals on their own merits, in accordance with law. The parties shall bear their own cost. Counsel fee Rs. 2000/-, if certified.