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23. This Court has to now decide whether the order dated July 01, 2025 passed by the learned Judge of the first appellate Court is an order appealable under Section 104 read with Order XLIII Rule 1(u) of the Code.

24. At this stage it would be beneficial to reproduce Order XLI Rule 23 of the Code, which reads thus:

"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.

26. As to what are the tests for determining whether a decision in a suit is on a preliminary point have been laid down by the Hon'ble Division Bench of the Calcutta High Court in the case of Nirmala vs Galop reported at AIR 1934 Calcutta 49. It was held therein that the meaning of the words "preliminary point" has been correctly laid down by the decision of a Full Bench of the Madras High Court in the Malayath Veetil Raman Nayar Vs. Krishna Nambudripad reported at AIR 1922 Madras 505, wherein it was pointed out the words "preliminary point" are not confined to such legal points only as will be applied as a bar in suit but comprehend all such points as may have prevented the Court from disposing of the case on the merits whether such points are pure questions of law or pure questions of fact. It was further pointed out that preliminary point must be one which must be independent of the merits.

27. This Court has to now decide whether the suit was disposed of by the learned trial Judge on a preliminary point.

28. It is evident from the order dated April 24, 2025 passed by the learned trial Judge in Title Suit No. 157 of 2016 that pursuant to an order dated July 18, 2019 passed in C.O. 22 of 2019 a preliminary issue was framed whether the suit is maintainable in its present form and in law. Subsequent to passing the order in C.O. 22 of 2019, the application under Order VII Rule 11 of the Code was filed. The learned trial Judge decided the preliminary issue against the plaintiff and dismissed the suit by an order dated April 24, 2025. After reading the order dated April 24, 2025, this Court is of the considered view that the decision on the point of maintainability of the suit prevented the Court from disposing of the case on merits. To the mind of this Court, the learned trial Judge disposed of the suit upon a preliminary point by a decree dated April 24, 2025. Though the order dated April 24, 2025 records that the application under Order VII Rule 11 of the Code was allowed, this Court is of the considered view that the portion of the order allowing the application under Order VII Rule 11 of the Code got subsumed in the order disposing of the suit upon a preliminary point. Thus, in reality the order dated April 24, 2025 disposed of the suit upon a preliminary point, which undoubtedly satisfies the essential requirements of a "decree" as defined under Section 2(2) of the Code.

41. The point of reference was answered by holding that the proper remedy would be to file a writ petition under Article 227 of the Constitution of India.

42. From the observations made in paragraphs 47 and 103 of the said reports, this Court finds that the issue that arose for consideration in the said paragraphs was what would be the remedy when the appellate Court either affirms or reverses the order rejecting the plaint thereby restoring the suit to be tried on merits. While answering such issue an opinion was expressed that such an order is in effect an order of remand under Order XLI Rule 23 of the Code. Though Mr. Chatterjee placed strong reliance on the observations made in the said paragraphs in support of his preliminary objection as to maintainability of this application but such observations were confined to proceedings which arose out of an order passed under Order VII Rule 11 of the Code. As to whether an application under Article 227 of the Constitution of India is maintainable against an order of remand passed by the appellate Court after reversing a decree disposing of a suit on preliminary point by the Trial Judge did not arise for consideration before Hon'ble Full Bench in the said reported decision