JUDGMENT : 1. The appellant has preferred this Appeal from Order under Section 104 read with Order XLIII, Rule 1 (r) of the Code of Civil Procedure against the judgment and decree dated 30.7.2016 rendered by learned Additional District Judge in Regular Civil Application No.47 of 2013, whereby learned Additional District Judge has set aside the judgment and decree passed by learned 8th Additional Senior Civil Judge, Bharuch, dated 1.5.2013 passed in Special Civil Suit No.103 of 2005 with a direction to consider the evidence produced by the defendant and also to consider the evidence produced by the plaintiff thereon and to decide the suit afresh. 2. It is the contention of the appellant, who is the original plaintiff, that he has preferred Special Civil Suit No.103 of 2005 before learned Principal Civil Judge, Bharuch, against the respondents herein which came to be partly decreed in favour of him and the respondents were directed to give vacant and peaceful possession of the suit property to him. It is contended that being aggrieved with the said judgment and decree, the respondent preferred Regular Civil Application No.47 of 2013 before District Court, Bharuch, wherein by the impugned judgment and decree dated 30.7.2016, learned appellate Court has set aside the trial Court decree and remanded the matter to the trial Court. It is contended that the appellate Court ought to have considered the evidence on record and decided the appeal itself. It is contended that the appellate Court has erred in interpreting the contents of the challan produced at Exh.21, which was not challenged by the respondent. It is also contended that the appellate Court has misread the documentary evidence and has wrongly come to the conclusion that the respondent has produced document at Exh.58, which has not been considered by the trial Court. It is also contended that the impugned judgment and order of the first appellate Court is without any justifiable reasons and it is contrary to the Order XLI, Rule 23 of the Code of Civil Procedure. It is prayed to set aside the impugned judgment and decree of the first appellate Court. 3. Heard learned advocate Mr.Archit P. Jani for the appellant and Mr.Chirag Patel, learned advocate for the respondents. 4. It is prayed to set aside the impugned judgment and decree of the first appellate Court. 3. Heard learned advocate Mr.Archit P. Jani for the appellant and Mr.Chirag Patel, learned advocate for the respondents. 4. The main argument of learned advocate Mr.Jani is that the observations of the first appellate Court regarding non-consideration of the documentary evidence alleged to be produced by the defendants-respondents by the trial Court has no basis as the defendants-respondents have not taken care to get it exhibited before the trial court. He has also submitted that as per the Order XLIII, Rule 23 and 23 (A), power could be exercised only in those circumstances. According to him, in this case, trial Court has not decided the suit merely on the preliminary ground and, therefore, there was no scope of application of Rule 23 of Order XLIII. He has submitted that even under Rule 23 (A) of Order XLIII, the facts of the matter does not Call to remand the matter to the trial Court. Alternatively, he has submitted that if the appellate Court came to the conclusion that matter needs to be remanded to the trial Court, then in such cases, appellate Court should not have expressed any opinion on the merits of the case. He has submitted that in this case, first appellate Court has acceded its jurisdiction. He has submitted that the impugned judgment and decree of the first appellate Court be set aside and first appellate Court be directed to decide the appeal itself. He has relied upon the following decisions in support of his arguments. (i) Syeda Rahimunnisa v. Malan Bi (dead) by legal representatives and Another reported in (2016) 10 SCC 315 . (ii) J. Balaji Singh v. Diwakar Cole and Others reported in (2017) 14 SCC 207 . (iii) Kapilbhai Ishwarbhai Patel v. Dineshbhai Manubhai Patel decd. Through heirs, reported in (2016) 3 GLH 334 . 4.1 In view of aforesaid submissions and decisions, he has prayed to allow present appeal. 5. Per contra, Mr.Chirag Patel, learned advocate for the respondents has submitted that the first appellate Court has not committed any error of facts and law which needs interference at the hands of this Court. Through heirs, reported in (2016) 3 GLH 334 . 4.1 In view of aforesaid submissions and decisions, he has prayed to allow present appeal. 5. Per contra, Mr.Chirag Patel, learned advocate for the respondents has submitted that the first appellate Court has not committed any error of facts and law which needs interference at the hands of this Court. He has submitted that as the documentary evidence produced by the respondents-defendants were not considered by the trial Court, the first appellate Court was within its jurisdiction to remand the matter to the trial Court for considering the same. He has submitted that the first appellate Court has also kept open the right of the plaintiff to produce any other evidence in the matter. He has submitted that by the impugned order the first appellate Court has not acceded its jurisdiction and has only tried to give justice to both the sides. He has submitted that under Rule 23 (a) of Order XLIII, ample power has been vested in the appellate Court to remand the matter for deciding afresh to the concerned trial Court. He has relied upon following decisions:- i) Jamngar Municipal Corporation through Commissioner v. Navindchandra Hansrajbhai Lakhiyar and Others reported in 2013 (5) GLR 3974 . (ii) J. Balaji Singh v. Diwakar Cole and Others reported in (2017) 14 SCC 207 . 6. Heard learned advocates for the parties and perused the material placed on record and considered the decisions cited at bar. 6.1 In the case of Kapilbhai Ishwarbhai Patel (supra), this Court has observed as under:- “20. Now, brief reference may be made to remand provision. Case laws relied on by parties mainly revolve around power and scope of remand. 21. Rule 23 reads, thus : “Rule 23. 6.1 In the case of Kapilbhai Ishwarbhai Patel (supra), this Court has observed as under:- “20. Now, brief reference may be made to remand provision. Case laws relied on by parties mainly revolve around power and scope of remand. 21. Rule 23 reads, thus : “Rule 23. - Remand of case by Appellate Court — Where the Court from whose decree an appeal is preferred has disposed of the suit on a preliminary point and the decree is reversed in appeal, or where the Appellate Court, while reversing or setting aside the decree under appeal, considers it necessary in the interests of justice to remand the case, it 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 direction tore-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. he evidence during the trial after remand.” 21.1 Rule 23 can be invoked only when suit is disposed of on preliminary issue. In practice, comparatively such cases would be few. In those cases where the suit is disposed of on preliminary issue and the Court is of the view that matter is required to be remanded, there should also be disagreement of appellate court with the finding of the trial court and it shall reverse that finding. Consequence of reversal of finding and decree would be followed by remand. In the present case, the suit is not disposed of on preliminary issue. Hence, no question of exercise of power under Rule 23. 22. Limitation on power of appellate court to remand the case only wherein the suit is disposed of on preliminary issue is lifted by introduction of Rule 23A. Rule 23A reads, thus; “23A. In the present case, the suit is not disposed of on preliminary issue. Hence, no question of exercise of power under Rule 23. 22. Limitation on power of appellate court to remand the case only wherein the suit is disposed of on preliminary issue is lifted by introduction of Rule 23A. Rule 23A reads, thus; “23A. - Remand in other cases - Where the Court from whose decree an appeal is preferred has disposed of the case otherwise then 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.” 22.1 By virtue of 1976 Amendment, appeal can be remanded even in cases wherein case is disposed of ‘otherwise than on preliminary point. 23. Shri Vyas, learned Senior Advocate for the appellant has drawn attention to Gamanbhai Patel’s case (supra). Attention inter-alia was drawn to Para.19. It reads as under : “19. It is undoubtedly true that Rule 23A which came to be introduced by Amendment Act, 1976 deals with residuary cases or other cases where the order of remand could be made by the appellate Court. The circumstances under which remand could be ordered in cases other than those covered by Rule 23 Order 41, it is provided that where re-trial is considered necessary, the appellate Court shall have some powers as it has under Rule 23 to direct as to what issue or issues shall be tried in the case so remanded. The learned Assistant Judge has not assigned any legal, proper, justifiable or cogent reason and has nowhere recorded his satisfaction that a retrial, in his opinion, was necessary. The power to remand under Rule 23A of Order 41 of C.P. Code is not to be exercised rashly and without sufficient cause. Order of retrial in any case unless it is absolutely necessary, is to be avoided. The power to remand under Rule 23A of Order 41 of C.P. Code is not to be exercised rashly and without sufficient cause. Order of retrial in any case unless it is absolutely necessary, is to be avoided. It shall have to be kept in mind by the appellate Court that a remand of a case after quashing and setting aside the decree of the trial Court with direction to reframe issues and to permit the parties to lead evidence once again is bound to add to miseries of the parties as ordinarily trial of a civil suit in the Courts in India consume minimum five to seven years time at the stage of trial and there are towns and cities where even suits are not tried in a period of a decade or more. The human patience of the litigating parties is by that time lost or exhausted and a feeling of dissatisfaction pervades the trial Court all throughout the country and order of remand, therefore, which is casually made without sufficient cause, without any justifiable reason and without stating as to why re-trial is necessary, is wholly unjustifiable both from the point of exercise of judicial discretion as well from the point of non-fulfilment of statutory provisions. In the opinion of this Court, Rule 23A of Order 41 is only to be invoked in rarest of rare or most exceptional cases when the appellate Court is for very convincing and cogent reasons to be recorded in writing is satisfied that a re-trial is necessary, failing which substantial miscarriage of justice would result. In my opinion, in the present case, in view of the most unsatisfactory, vague, ambiguous and nebulous statements and totally unconvincing and unjustifiable reasons given by the learned Asst. Judge, there was no justification to quash and set aside the judgment and decree passed by the trial Court and to direct re-trial of the suit after framing proper issues and after recording evidence afresh which may be led by the parties.” 23.1 The Gamanbhai’s case (supra) was rightly invokved by Shri Vyas, learned Senior Advocate for the appellant. While one may agree with the view expressed therein, it may be stated that restricting the remand in rarest of rare case is too stringent test to apply in practice. While one may agree with the view expressed therein, it may be stated that restricting the remand in rarest of rare case is too stringent test to apply in practice. It may be borne in mind that in that case, it was found that the learned Judge was used to dispose of most of the appeals by remanding the same and in that way, facts of that case was typical. Once the appellate court reverses the decree under appeal and in the process, it considers satisfactorily case on merits and further, retrial is considered necessary by it then, remand follows naturally. No further test then courts need to apply. It is enough that appellate court is conscious that remand should be in ‘exceptional’ or in ‘rare’ case only. In order to emphasise limited scope of remand and in order to give full and maximum weightage to it, adding the superlative term to the expression of rare by saying that it should be in rarest of rare case, is not proper and it is perhaps not called for. Howsoever in simple terms and in clear words the proper and true scope of remand is laid down, ultimately there is no other way but, to leave it to the discretion of the appellate court.” 6.2 In the case of Syeda Rahimunnisa (supra), Honourable Apex Court has observed as under:- “35. It is a settled principle of law that in order to claim remand of the case to the trial court, it is necessary for the appellant to first raise such plea and then make out a case of remand on facts. The power of the appellate court to remand the case to subordinate court is contained in order XLI Rule 23, 23-A and 25 of CPC. It is, therefore, obligatory upon the appellant to bring the case under any of these provisions before claiming a remand. The appellate court is required to record reasons as to why it has taken recourse to any one out of the three Rules of Order XLI of CPC for remanding the case to the trial court. It is, therefore, obligatory upon the appellant to bring the case under any of these provisions before claiming a remand. The appellate court is required to record reasons as to why it has taken recourse to any one out of the three Rules of Order XLI of CPC for remanding the case to the trial court. In the absence of any ground taken by the respondents (appellants before the first appellate court and High Court) before the first appellate court and the High Court as to why the remand order in these cases is called for and if so under which Rule of Order XLI of CPC and further in the absence of any finding, there was no justification on the part of the High Court to remand the case to the trial court. The High Court instead should have decided the appeals on merits. We, however, do not consider proper to remand the case to High Court for deciding the appeals on merits and instead examine the merits of the case in these appeals.” 6.3 In the case of Jamnagar Municipal Corporation (supra), this Court has observed as under:- “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. 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 re-trial 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.” “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. 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 reported in AIR 1980 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 reported in (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.” 6.4 In the case of J.Balaji Singh (supra), Honourable Apex Court has observed as under:- “10. The question, which arises for consideration in this appeal, is whether the High Court was justified in allowing the defendants’ appeal and thereby justified in restoring the judgment/decree of the Trial Court which had dismissed the suit. In other words, the questions which arose before the High Court were, whether the first Appellate Court was justified in setting aside the judgment/decree of the Trial Court; and if so, whether it was justified in remanding the case to the Trial Court for fresh trial of the suit in accordance with law. In other words, the questions which arose before the High Court were, whether the first Appellate Court was justified in setting aside the judgment/decree of the Trial Court; and if so, whether it was justified in remanding the case to the Trial Court for fresh trial of the suit in accordance with law. Another question, which fell for consideration, was whether the first Appellate Court was justified in allowing the application filed by the appellant (plaintiff) under Order 41 Rule 27 of the Code by which the plaintiff had sought permission to adduce additional evidence in appeal in support of his case. 13. The main question, which fell for consideration before the High Court, was whether the first Appellate Court was right in remanding the case to the Trial Court for fresh trial on merits? 14. There are three provisions in the Code which deal with the power of the Appellate Court to remand the case to the Trial Court. These provisions are Order 41 Rules 23, 23-A, and 25. 14.1 So far as Order 41 Rule 23 is concerned, it enables the Appellate Court to remand the case to the Trial Court when it finds that the Trial Court has disposed of the suit upon a preliminary point. The Appellate Court in such cases is empowered to direct the Trial Court to decide all the issues on evidence on record. 14.2 So far as Rule 23-A is concerned, it enables the Appellate Court to remand the case to the Trial Court when it finds that though the Trial Court has disposed of the suit on all the issues but on reversal of the decree in appeal, a retrial is considered necessary by the Appellate Court. 14.3 So far as Rule 25 is concerned, it enables the Appellate Court to frame or try the issue if it finds that it is essential to the right decision of the suit and was not framed by the Trial Court. The Appellate Court in such case may, accordingly, frame the issues and refer the same to the Trial Court to take the evidence and record the findings on such issues and return to the Appellate Court for deciding the appeal. In such cases, the Appellate Court retains the appeal to itself. 15. The Appellate Court in such case may, accordingly, frame the issues and refer the same to the Trial Court to take the evidence and record the findings on such issues and return to the Appellate Court for deciding the appeal. In such cases, the Appellate Court retains the appeal to itself. 15. Now coming to the facts of the case, we are of the considered opinion that once the first Appellate Court allowed the application under Order 41 Rule 27 of Code and took on record the additional evidence, it rightly set aside the judgment/decree of the Trial Court giving liberty to the parties to lead additional evidence in support of their case which, in turn, enabled the Trial Court to decide the civil suit afresh on merits in the light of entire evidence. The first Appellate Court was, therefore, justified in taking recourse to powers conferred on the Appellate Court under Order 41 Rule 23-A for remanding the case to the Trial Court. We find no fault in exercise of such power by the first Appellate Court. 16. In our considered view, the only error which the first Appellate Court committed was that it went on to record the findings on merits. In our view, it was not necessary to do so while passing the order of remand. The reason is that once the first Appellate Court formed an opinion to remand the case, it was required to give reasons in support of the remand order as to why the remand is called for in the case. Indeed, the remand was made only to enable the Trial Court to decide the case on merits. Therefore, there was no need to discuss much less record findings on several issues on merits. It was totally uncalled for. 17. So far as the impugned order is concerned, the High Court, in our view, committed jurisdictional error when it also again examined the case on merits and set aside the judgment of the first Appellate Court and restored the judgment of the Trial Court. The High Court, in our opinion, should not have done this for the simple reason that it was only examining the legality of the remand order in an appeal filed under Order 43 Rule 1(u) of the Code. The High Court, in our opinion, should not have done this for the simple reason that it was only examining the legality of the remand order in an appeal filed under Order 43 Rule 1(u) of the Code. Indeed, once the High Court came to a conclusion that the remand order was bad in law then it could only remand the case to the first Appellate Court with a direction to decide the first appeal on merits. 18. The High Court failed to see that when the first Appellate Court itself did not decide the appeal on merits and considered it proper to remand the case to the Trial Court, a fortiori, the High Court had no jurisdiction to decide the appeal on merits. Moreover, Order 43 Rule 1(u) confers limited power on the High Court to examine only the legality and correctness of the remand order of the first Appellate Court but not beyond that. In other words, the High Court should have seen that Order 43 Rule 1(u) gives a limited power to examine the issue relating to legality of remand order, as is clear from Order 43 Rule 1(u) which reads thus:- “1(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.” 6.5 In view of aforesaid pronouncements of the Apex Court especially in the case of J.Balaji Singh (supra), it is well settled that under Order XLI, Rule 23 enables the appellate Court to remand the case to the trial Court, if it finds that the trial Court has disposed of the suit on preliminary point. The appellate Court in such case is empowered to direct the trial Court to decide all the issues on the evidence on record. Rule 23 (A) enables the appellate Court to remand the case to the trial court when it finds that the trial Court has disposed of the suit on all the issues but on reversal of the decree in appeal, redressal is considered necessary by the appellate Court. 7. While remanding the matter under Rule 23 (A), the appellate Court cannot dwelve upon the merits of the case. It is not necessary for the appellate Court to dwelve upon the merits of the case while passing the order of remand under Rule 23 (A). 7. While remanding the matter under Rule 23 (A), the appellate Court cannot dwelve upon the merits of the case. It is not necessary for the appellate Court to dwelve upon the merits of the case while passing the order of remand under Rule 23 (A). The reason behind it is, as observed by the Honourable Apex Court that once the first appellate Court has formed an opinion to remand the case, it was required to give reasons in respect of remand order as to why remand is necessary in that case. The remand order needs to be made only to enable the trial Court to decide the case on merits. Therefore, while exercising power under Rule 23 (A) of Order XLIII, the appellate Court has no need to discuss the finding of fact on several issues on merits. 8. Now, on perusal of the impugned judgment and order of the first Appellate Court, it appears that it has considered the necessity to remand the matter to the trial Court as documentary evidence alleged to be produced by the defendants-respondents is not considered by the trial Court. Said observation of the first appellate Court is justified but the observation regarding merits of the case relating to challan as well as saving bank account statement was uncalled for. The first appellate Court ought not to have dealt with this aspect of the matter while remanding the matter back. In view of that all the observations regarding appreciation of evidence on merits regarding Exh.26 challan as well as other documents at exh.21, 24 and 27 be discarded. Therefore, to that extent, the order of the first appellate Court is modified and trial Court is directed to see to it that all the observations made by the first appellate Court regarding merits of the case pertaining to aforesaid documents may not be considered by the trial Court and the trial Court shall decide the matter afresh without being influenced by any of the observations made by the first appellate Court on merits of the case. 9. In view of above, present appeal is partly allowed. The impugned judgment and decree of the first appellate Court dated 30.7.2016 in Regular Civil Application No.47 of 2013 is modified to aforesaid extent. 9. In view of above, present appeal is partly allowed. The impugned judgment and decree of the first appellate Court dated 30.7.2016 in Regular Civil Application No.47 of 2013 is modified to aforesaid extent. Trial Court shall ensure disposal of the suit as early as possible and preferably within a period of four months from today, without being influenced by the observations of the first appellate Court regarding merits of the case. The parties are directed to cooperate with the trial Court in deciding the suit in a time bound manner. No order as to costs.