JUDGMENT : J.B. Pardiwala, J. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 is at the instance of the original defendant and is directed against the judgment and order dated 6th October 2017 passed by the 2nd Additional District Judge, Patan in Regular Civil Appeal No.52 of 2011 arising from a judgment and decree dated 6th September 2011 passed by the Principal Senior Civil Judge, Patan in Regular Civil Suit No.63 of 2005. 2. For the sake of convenience, the appellant herein shall be referred to as 'the defendant' and the respondents herein shall be referred to as 'the plaintiffs'. 3. The plaintiffs filed the Regular Civil Suit No.63 of 2005 in the Court of the Principal Senior Civil Judge, Patan for permanent injunction restraining the defendant from putting up any construction on the property in question. The suit filed by the plaintiffs came to be dismissed. 4. Being dissatisfied with the judgment and decree passed by the Trial Court dismissing the suit, the plaintiffs preferred the Regular Civil Appeal No.52 of 2011 in the District Court at Patan. The lower Appellate Court, by judgment and order dated 6th October 2017, allowed the appeal filed by the plaintiffs and remanded the matter to the Trial Court for a de novo trial after framing appropriate issues. The operative part of the impugned judgment and order passed by the lower Appellate Court is extracted hereunder: ORDER :- (1) The present Regular Civil Appeal No. 52/2011 is hereby allowed. (2) The judgment and decree passed in the Regular Civil Suit No. 63/2005 under exhibit no. 132 by the Principal Senior Civil Judge of Patan dated 06/09/2011 is set aside and as per Order XLI, Rule 23 of CPC, the aforesaid case is remanded to the Trial Court. The Trial Court is directed to frame the issue considering the fact that though temporary injunction was in operation, yet the defendant disobeyed the same and continued to complete the construction on the encroachment, and to dispose of the case on merits at the earliest in accordance with law. (3) Parties to bear their own costs. The records of the Regular Civil Suit No. 63/2005 be immediately sent to the Court concerned." 5. (3) Parties to bear their own costs. The records of the Regular Civil Suit No. 63/2005 be immediately sent to the Court concerned." 5. Thus, it appears that the lower Appellate Court thought fit to quash and set aside the judgment and decree passed by the Trial Court dismissing the suit filed by the plaintiffs and remanding the matter to the Trial Court invoking the provisions of Order 41 Rule 23 of the C.P.C. for a de novo trial. 6. Being dissatisfied with the judgment and order passed by the lower Appellate Court, the original defendant is here before this Court with this Second Appeal under Section 100 of the C.P.C. 7. On 21st June 2018, this Court passed the following order: "Heard Mr. Nirav R. Mishra, the learned counsel appearing for the appellant - original defendant and Mr. Nishit P. Gandhi, the learned counsel appearing for the respondent - original plaintiff. On 26th April 2018, a coordinate bench of this Court passed the following order : "1. The dispute is between two real brothers. For some alleged encroachment/construction, one brother has approached the Trial Court (Principal Senior Civil Judge, Patan). The Trial Court has dismissed the suit vide judgment and decree dated 06.09.2011 recorded on Regular Civil Suit No.63 of 2005. The said judgment and decree was challenged before the District Court. The 2nd Additional District Judge, Patan has, by the impugned judgment and order dated 06.10.2017, allowed the Appeal being Regular Civil Appeal No.52 of 2011, and has remanded the matter back to the Trial Court. 2. The Appellate Court below has, by the impugned order, on one hand remanded back the matter to the Trial Court, and at the same time has recorded the finding on the points, for which the matter is remanded back to the Trial Court. There is nothing left to the Trial Court to adjudicate. Prima facie, the impugned judgment and order of the Appellate Court below is unsustainable. 3. List for further consideration on 21.06.2018. In the meantime, the impugned judgment and order passed by the 2nd Additional District Judge, Patan dated 06.10.2017 in Regular Civil Appeal No.52 of 2011 shall remain stayed. There is nothing left to the Trial Court to adjudicate. Prima facie, the impugned judgment and order of the Appellate Court below is unsustainable. 3. List for further consideration on 21.06.2018. In the meantime, the impugned judgment and order passed by the 2nd Additional District Judge, Patan dated 06.10.2017 in Regular Civil Appeal No.52 of 2011 shall remain stayed. Direct service today is permitted." This Second Appeal is ordered to be admitted on the following substantial questions of law : "a. Whether the Hon'ble Appellate Court while exercising its jurisdiction under Section 96 of the C.P.C. was justified in exercising its power below Order 41 Rule 23 in quashing and setting aside the entire judgment passed by the Hon'ble Civil Court dated 06.09.2011 and remanding the said matter for retrial ? b. Whether the issue framed by the Hon'ble Appellate Court in its judgment dated 06.10.2017 amounts to over reaching the powers of the Appellate Court under Section 96 virtually declaring that the appellant has encroached upon the margin area land and has constructed the property against the order in interim injunction application ? c. Whether the Hon'ble Appellate Court was justified in reframing the issue as to whether the plaintiff has encroached upon the margin area land and has carried out construction against the order in interim injunction application, whereas vide the order of interim injunction application dated 04.05.2005 the Hon'ble Civil Court had permitted the plaintiff to carry out the construction within his margin area and as per the appropriate bye-laws and construction layout plans. d. Whether the Hon'ble Appellate Court in its impugned judgment has transgressed the jurisdiction enshrined upon it under Section 96 of the C.P.C. and has wrongly reached to the conclusion of remanding the entire Civil Suit by exercising power under Order 41 Rule 23 of the C.P.C. ?" The interim order earlier granted to continue till the final disposal of this Second Appeal. Notify the Second Appeal for final disposal on 18th July 2018 on top of the board." 8. Thus, the Second Appeal came to be admitted on the substantial questions of law formulated in the memo of the Second Appeal and an interim order also came to be passed on the civil application staying the operation, implementation and execution of the impugned judgment and order passed by the lower Appellate Court. 9. Thus, the Second Appeal came to be admitted on the substantial questions of law formulated in the memo of the Second Appeal and an interim order also came to be passed on the civil application staying the operation, implementation and execution of the impugned judgment and order passed by the lower Appellate Court. 9. The Second Appeal has been notified today for final hearing. Mr. Nishit Gandhi, the learned counsel appearing for the original plaintiffs has raised a preliminary contention as regards the maintainability of this Second Appeal under Section 100 of the C.P.C. According to Mr. Gandhi, although the lower Appellate Court allowed the appeal filed by the plaintiffs by quashing and setting aside the judgment and decree passed by the Trial Court, yet thought fit to remand the matter to the Trial Court for a de novo trial under the provisions of Order 41 Rule 23 of the C.P.C. The submission is that an order of remand passed under Order 41 Rule 23 is amenable to appeal under Order 43 Rule 1(u) of the Code. Once an order is amenable to appeal under Order 43 Rule 1, such an order cannot be termed as a decree. 10. In such circumstances, according to Mr. Gandhi, the only remedy available with the appellant herein is to challenge the judgment and order passed by the lower Appellate Court by preferring a Miscellaneous Civil Appeal under Order 43 Rule 1 of the C.P.C. or the appellant may invoke the supervisory jurisdiction of this High Court under Article 227 of the Constitution of India. 11. Mr. Gandhi, in support of his submissions, has placed reliance on a decision of this Court in the case of Jamnagar Municipal Corporation through Commissioner vs. Navinchandra Hansrajbhai Lakhiyar, (2013) 5 GLR 3974. 12. In such circumstances referred to above Mr. Gandhi submitted that this Second Appeal may not be heard on merits as it is not maintainable in law and the appellant may be relegated to avail of appropriate legal proceedings before the appropriate forum in accordance with law. 13. On the other hand, Mr. Mishra, the learned counsel appearing for the appellant - original defendant submitted that there is no merit in the preliminary contention raised by the learned counsel appearing for the original plaintiffs as regards the maintainability of the Second Appeal. Mr. 13. On the other hand, Mr. Mishra, the learned counsel appearing for the appellant - original defendant submitted that there is no merit in the preliminary contention raised by the learned counsel appearing for the original plaintiffs as regards the maintainability of the Second Appeal. Mr. Mishra would submit that the lower Appellate Court, after the pronouncement of the judgment and order, allowing the appeal filed by the original plaintiffs and remanding the matter to the Trial Court, has also ordered to draw decree. According to Mr. Mishra, a decree has been drawn in accordance with the judgment and order passed by the lower Appellate Court, and therefore, in such circumstances, the only remedy available with the appellate herein is to challenge the judgment and decree by way of a Second Appeal under Section 100 of the C.P.C. 14. In such circumstances referred to above, Mr. Mishra prays that the preliminary contention raised by the original plaintiffs be negatived and the Second Appeal be heard on the substantial questions of law, which have been framed by this Court in the order dated 21st June 2018. 15. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether this Second Appeal under Section 100 of the C.P.C. is maintainable in law. 16. 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." 17. (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." 17. 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. 18. 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: "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. 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;" 19. 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;" 19. 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." 20. Order 41 of the Code provides for appeals from original decrees. The Code empowers the Appellate Court to order remand in three situations. These three situations are covered by Order 41 Rule 23, Order 41. Rule 23A and Order 41 Rule 25 which read as under: "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. 23A. 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 retrial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23. * * * 25. 23A. 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 retrial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23. * * * 25. Where Appellate Court may frame issues and refer them for trial to court whose decree appealed from - Where the court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the court from whose decree the appeal is preferred and in such case shall direct such court to take the additional evidence required; and such court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons there for within such time as may be fixed by the Appellate Court or extended by it from time to time." 21. 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. 22. Order 41 Rule 23A has been inserted in the Code by Act 104 of 1976 with effect from 1st February 1977. According to Order 41 Rule 23A 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. 23. 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. 23. 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 issue(s). 24. 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 frame appropriate issue and 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 23A of the Code. 25. Order 43 of the Code provides for appeals from orders. Clause (u) of Rule 1 Order 43 was amended consequent upon insertion of Rule 23A in Order 41 with effect from 1st February 1977. It reads as under: "1. An appeal shall lie from the following orders under the provisions of Section 104, namely:- * * * (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;" It is clear from the above provision that an order of remand passed under Order 41 Rule 23A is amenable to appeal under Order 43 Rule 1 (u) of the Code. 26. Let me now look into the decision of this Court in the case of Jamnagar Municipal Corporation (supra). The relevant observations are as under: "10. 26. Let me now look into the decision of this Court in the case of Jamnagar Municipal Corporation (supra). The relevant observations are as under: "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. 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, (2002) 2 SCC 686 ; 2. In the case of Narayanan Vs. 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, (2002) 2 SCC 686 ; 2. In the case of Narayanan Vs. Kumaran and Others, (2004) 4 SCC 26 ; 3. In the case of Soni Dineshbhai Manilal and Others Vs. Jagjivan Mulchand Choksi, (2007) 13 SCC 293 ; 4. In the case of Municipal Corporation, Hyderabad Vs. Sunder Singh, (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, 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. 16. In the case of P. Purushottam Reddy, 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. 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, (1965) AIR SC 364, 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 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 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. 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? 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. 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 retrial 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. The High Court had not arrived at a finding that a retrial 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., 0 41 IndCas 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. 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, (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. 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. 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, (1980) AIR Orissa 177. 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, (1980) AIR 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. 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, (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." 27. The decision of this Court referred to above leaves no manner of doubt that this Second Appeal is not maintainable. I am not impressed by the submission of Mr. Mishra, the learned counsel appearing for the appellant that as the lower Appellate Court has directed to draw a decree in terms of the judgment and order and as decree has been drawn, the only option or the legal remedy available with the appellant is to get the decree quashed and set aside by filing a Second Appeal under Section 100 of the C.P.C. If a decree is drawn under an erroneous misconception of law, then the same, by itself, would not make the Second Appeal maintainable under Section 100 of the C.P.C. if it is otherwise not maintainable. One should look at the substance of the order passed by the lower Appellate Court rather than the form. One should look at the substance of the order passed by the lower Appellate Court rather than the form. The lower Appellate Court may be absolutely wrong in passing the impugned judgment and order, but the same can be corrected in the proceedings in an appeal under Order 43 Rule 1 and not by way of a Second Appeal under Section 100 of the C.P.C. 28. Section 2(2) of the C.P.C. defines "decree". Section 2(2) makes it abundantly clear that any adjudication from which an appeal lies as an appeal from an order, the same will not amount to a decree. In such circumstances, if the decree has been drawn erroneously, the same should be ignored. 29. XXXX XXXX XXXX 30. At this stage, Mr. Mishra, the learned counsel appearing for the appellant expressed an apprehension that if he would file an Appeal from Order under Order 43 Rule 1 of the C.P.C., then the first objection that the Registry may raise would be with regard to the decree drawn by the lower Appellate Court. If at all such an objection is raised by the Registry, the same would be without any basis and untenable in law. 31. The only thing I need to clarify is that an appeal under Order 43 Rule 1(u) of the C.P.C. should be heard only on the ground enumerated in Section 100 of the Code. In other words, the constraints of Section 100 C.P.C. continue to be attached to an appeal under Order 43 Rule 1(u) of C.P.C. The appeal under Order 43 Rule 1(u) of the Code can only be heard on the ground when a Second Appeal is heard under Section 100 C.P.C. 32. In the aforesaid context, I may refer to a decision of the Supreme Court in the case of Narayanan vs. Kumaran, (2004) 4 SCC 26 ]. The relevant observations are as under: "15. Mr. T.L.V. Iyer, learned senior counsel for the appellant raised a controversy which related to the scope and nature of hearing an appeal under order 43 Rule (1) clause (u) of CPC. It was contended by Mr. Iyer that though it is filed as Civil Misc. Appeal against the order of remand, it is necessarily a second appeal and, therefore, can be competent only on the ground mentioned in Section 100. It is further argued that the appellants in Civil Misc. It was contended by Mr. Iyer that though it is filed as Civil Misc. Appeal against the order of remand, it is necessarily a second appeal and, therefore, can be competent only on the ground mentioned in Section 100. It is further argued that the appellants in Civil Misc. Appeals against question of facts and the findings of fact of the lower court even though found to be erroneous are binding in such an appeal. 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:- "Order 43 Rule (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, 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. 18. The High Court of Rajasthan in Abdul Gani & Another. v. Devi Lal & Another., (1960) AIR Raj. 77 held that the appeal under this clause should be heard only on the grounds enumerated in Section 100 and not on question of facts as in the case of first appeal. 19. In Seshammal and Others. v. Kuppanaiyyanagar & Another., (1926) AIR Madras 475, this Court held as under: "Although the civil appeal has taken the form of a civil miscellaneous appeal against an order of remand the Subordinate Judge is a final Judge of fact and the only grounds available to the appellant to attack the judgment are those which would be available to him in second appeal." 20. In Ambukutti Vaidier v. Kannoth Koottambath Kelan, (1933) AIR Madras 460, the case of Secretary of State v. Tripurna Sundarammal and Anr., (1926) AIR Madras 474 was followed. The Court held that civil miscellaneous appeals stand on the same footing as second appeals with regard to their being arguably only question of law. 21. In Kaluvaroya Pillai and Others. vs. Ganesa Pandithan and Others., (1969) AIR Madras 248 , the Court held as under:- "Though this is a case in which the lower appellate Court remanded the suit. It appears to me that the totality of the suit has been remanded to the trial Court for reconsideration in view of certain irregularities inhered therein. As a matter of fact the lower appellate court set aside the judgment and decree of the trial Court in full. It appears to me that the totality of the suit has been remanded to the trial Court for reconsideration in view of certain irregularities inhered therein. As a matter of fact the lower appellate court set aside the judgment and decree of the trial Court in full. Though it gave a liberty to the respondents to have a retrial in the trial Court, presumably, in the interests of justice, it appears to me that the lower appellate Court has substituted its own judgment to that of the trial Court and in the peculiar circumstances of the present case it is not open to the appellants in this civil miscellaneous appeal to canvass the entire judgment and decree of the lower appellate Court by filing an appeal under Order XLIII, Rule 1 (u), C.P.C. I shall presently advert to the right of an appellant in a civil miscellaneous appeal to canvass the correctness of the findings other than those relating to the order of remand in such an appeal. But in so far as this appeal is concerned, as there has been a substitution of the judgment and decree of the appellate Court to that of the trial Court, the only remedy available to the appellants in this case was to file a second appeal, if appeal under Order XLIII, Rule 1 (u), C.P.C. Thus in the peculiar circumstances and on the facts of this case, it is not open to the appellants to canvass the other findings of the lower appellate Court." 22. It is also useful to reproduce order 41 Rule 23 of CPC which reads thus: "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." 33. In the case of Jamnagar Municipal Corporation (supra), it has been held by this Court that even if the Second Appeal has been admitted framing substantial questions of law, the issue with regard to its maintainability can be raised and decided. This is evident from the observations made by this Court, as contained in para 20 of the judgment. 34. In view of the above, this Second Appeal is disposed of as not maintainable in law. It shall be open for the appellant - original defendant to now avail of appropriate legal proceedings before the appropriate forum in accordance with law. 35. As this Court has taken the view that this Second Appeal is not maintainable, the interim order, which was earlier passed, needs to be vacated forthwith. The interim order is, accordingly, vacated. 36. Mr. Mishra, the learned counsel has an apprehension that as the interim order has been vacated, the Trial Court would now proceed further with the de novo conduct of the suit proceedings and that would cause a serious prejudice to his client. Having once taken the view that this Second Appeal is not maintainable, it would not be proper or rather it would be impermissible in law to allow the interim order to continue. However, it shall be open for the client of Mr. Mishra to request the Trial Court not to proceed further with the hearing of the suit de novo at least for a period of fifteen days, so that during the interregnum period, the appellant can avail of appropriate legal proceedings before the appropriate forum in accordance with law. 37. I am sure if any such prayer is made before the Trial Court, then the same may be considered positively having regard to the facts and circumstances of the case. 38. The Civil Application is shown to be pending. If that be so, the same is also disposed of.