Chamber Notes
Remand and Reference: The Two Ways Order XLI Sends a Case Back
5 October 2026 · 15 min read
An appellate Court hearing a first appeal is not confined to allowing it or dismissing it. Section 107(1) provides that, "Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power — (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken."
Four powers, and the section states none of the conditions. It prescribes them by reference: the conditions are in Order XLI, and they are not uniform. Sub-section (2) then adds that, subject as aforesaid, the Appellate Court "shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein."
Two of the four powers send the case back to the Court that decided it. They are not the same thing, they are not available in the same circumstances, and what follows from them is opposite. One ends the appeal and is appealable. The other keeps the appeal alive and is not.
Remand requires a reversal
Rule 23 is the older of the two remand provisions. It applies "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". In that situation 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 must send a copy of its judgment and order to the trial Court with directions to re-admit the suit under its original number in the register of civil suits and proceed to determine it. The rule closes by preserving the earlier record: "the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand."
Two conditions therefore gate Rule 23, and both are about what the Court below did. It must have disposed of the suit on a preliminary point, and its decree must have been reversed.
Rule 23A, inserted by the Code of Civil Procedure (Amendment) Act, 1976, supplies the other case. "Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23."
The second rule carries the second of Rule 23's two conditions and not the first. A remand under Rule 23A does not require a preliminary point; it requires a reversal, and a view that a re-trial is necessary. Reversal is the requirement common to both rules, and neither of them states a condition on which a case may be remanded where the decree below is confirmed or merely varied.
The two rules also do not describe the same thing in the same words. Rule 23 speaks of a Court which "has disposed of the suit upon a preliminary point"; Rule 23A, of a Court which "has disposed of the case otherwise than on a preliminary point". The Code does not define a preliminary point, and the division of the field between the two rules rests entirely on that undefined expression. What it does not rest on is any difference in the consequence, because Rule 23A confers "the same powers as it has under rule 23".
Section 99 adds a bar from the other direction. "No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court", with a proviso that the section does not apply to the non-joinder of a necessary party. So the Code names one class of defect that cannot support a remand however the Appellate Court views it, and it is the class that has nothing to do with the merits.
It is worth being exact about what this does and does not settle. Section 107(1)(b) confers the power to remand in unqualified words, and makes it subject to the conditions "as may be prescribed". Rules 23 and 23A are where the First Schedule prescribes them, and both are drafted for a reversed decree. Whether the general words of the section leave anything outside those two rules is a question the Code itself does not answer, and it is not answered here.
The provision that points the other way
Rule 24 sits between the two remand rules and the reference, and it pulls against all of them.
"Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgement, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds."
The rule is drafted to defeat the most obvious objection to deciding an appeal on a point the trial Court never reached. It says expressly that the divergence of grounds is no obstacle, and it permits the issues to be resettled in the Appellate Court rather than below.
What it does not do is compel. Rule 24 says the Appellate Court "may" finally determine the suit where the evidence on record is sufficient. Rule 23A says the Appellate Court shall have the power to remand where "a re-trial is considered necessary". Neither rule tells the Court which to prefer when both are open, and the Code supplies no standard by which the necessity of a re-trial is to be judged. The phrase is "considered necessary", and the Court that considers it is the Court exercising the power.
Reference leaves the appeal where it is
Rule 25 is the third disposition, and it is not a remand at all.
It applies "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". In that case 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". The trial Court tries the issues and returns the evidence to the Appellate Court "together with its findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court or extended by it from time to time".
Rule 26 completes the circuit. The evidence and findings "shall form part of the record in the suit; and either party may, within a time to be fixed by the Appellate Court, present a memorandum of objections to any finding." Sub-rule (2) provides that after the period so fixed expires, "the Appellate Court shall proceed to determine the appeal."
Nothing leaves the Appellate Court. The suit is not re-admitted below under its original number; no new decree is passed there; the finding comes back and the appeal is decided on a record that now includes it. What Rule 25 returns to the trial Court is a question, not the case.
The gating condition is also differently drafted. Rule 23 and Rule 23A both ask what happened to the decree — it must have been reversed. Rule 25 asks only what is missing: an issue not framed or not tried, or a question of fact not determined, which appears to the Appellate Court essential to the right decision of the suit upon the merits. A reference is therefore available in an appeal in which the Appellate Court has not yet decided anything, and a remand is not.
Only one of the two can be appealed
Section 104(1) lists the orders from which an appeal lies, and clause (i) extends the list to "any order made under rules from which an appeal is expressly allowed by rules". Order XLIII Rule 1 is where the rules do that.
Clause (u) of Rule 1 allows an appeal from "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."
There is no corresponding clause for Rule 25. An order framing issues and referring them for trial is not in the list, and Section 104(1) closes the list: an appeal lies from the orders enumerated "and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders". Section 105(1) states the same proposition from the other side — "Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction" — and then preserves the point for later: "but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal."
So the ordinary treatment of a non-appealable order is that it survives into the appeal from the decree. A party who thinks the reference under Rule 25 should not have been made does not lose the point; he takes it in the appeal against the decree the Appellate Court eventually passes, under Section 105(1) and, where applicable, Order XLIII Rule 1A(1).
Clause (u) carries its own qualification: the appeal lies "where an appeal would lie from the decree of the Appellate Court". The remand order borrows its appealability from the decree the Appellate Court would otherwise have passed. Where no further appeal would lie from that decree, the remand is not appealable either, and the enumeration in Order XLIII Rule 1 does not reach it.
The one order that must be challenged when it is made
Section 105(2) is the provision that makes the distinction matter. Notwithstanding anything contained in sub-section (1), it provides, "where any party aggrieved by an order of remand" from which an appeal lies "does not appeal therefrom, he shall thereafter be precluded from disputing its correctness."
This is the exception to the rule that an unappealed order keeps. Sub-section (1) preserves errors in orders as grounds of objection in the appeal from the decree. Sub-section (2) withdraws that preservation from one order only — an appealable order of remand — and withdraws it completely. The word the sub-section uses is "thereafter", and it fixes no terminus.
The Code uses this device sparingly. Section 97 does the same thing for a preliminary decree: a party who does not appeal from it "shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree". Both provisions attach to a disposition that sets a further round of litigation in motion, and both require the party who objects to it to object immediately.
The practical shape of this is narrow and easily missed. An order of remand does not decide the suit; it restores it, and on the day it is passed neither side has lost anything that looks final. The appellant has his reversal. The respondent has a fresh trial in place of a decree against him. The grievance that Section 105(2) is addressed to is of a different kind — it is the complaint of a party who says the appeal should have been determined under Rule 24 on evidence already sufficient, or that the conditions in Rule 23 or Rule 23A were not made out at all, and who is therefore facing a second trial he says the Code did not authorise. That complaint has to be made by appealing the remand. Sub-section (2) leaves no later occasion for it.
Where the Code treats them alike
On one point Order XLI makes no distinction between the two dispositions at all.
Rule 26A, inserted by the same amending Act, provides that "Where the Appellate Court remands a case under rule 23 or rule 23A, or frames issues and refers them for trial under rule 25, it shall fix a date for the appearance of the parties before the Court from whose decree the appeal was preferred for the purpose of receiving the directions of that Court as to further proceedings in the suit."
One rule, both dispositions, no distinction. Whatever else separates them, each leaves the parties with something to do in a Court they are no longer before, and Rule 26A makes the Appellate Court fix the date on which they are to be there. It addresses the interval, not the disposition.
Rule 27 governs the fourth of the Section 107 powers, and the care the Code takes over it is worth setting beside the care it does not take over the third. The parties to an appeal "shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court", subject to three exceptions: where the trial Court "has refused to admit evidence which ought to have been admitted"; where the party establishes that "notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed"; or where "the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause". Sub-rule (2) requires the Court to record the reason for admitting it. Rule 28 permits the Appellate Court to take the evidence itself or direct the trial Court or any other subordinate Court to take it and send it up, and Rule 29 requires the Court to specify the points to which the evidence is to be confined and record those points on its proceedings.
So the Code is particular about additional evidence in a way it is not particular about remand. Rule 27 states a prohibition and three exceptions; Rule 27(2) requires reasons for the admission; Rule 29 requires the points to be specified and recorded. Rule 23A requires that a re-trial be "considered necessary" and says nothing about recording why.
What the judgment has to show
Rule 31 requires the judgment of the Appellate Court to be in writing and to state the points for determination, the decision on them, the reasons for the decision, and, "where the decree appealed from is reversed or varied, the relief to which the appellant is entitled". Rule 32 provides that the judgment "may be for confirming, varying or reversing the decree from which the appeal is preferred".
Both remand rules operate only on a reversal, so Rule 31(d) applies to every case in which they are used: the judgment that precedes a remand must state the relief to which the appellant is entitled, in a disposition whose whole effect is that the question of relief goes back to be tried again.
Rule 33 then states the width of what the Appellate Court can do instead. It "shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require", and the power may be exercised "notwithstanding that the appeal is as to part only of the decree" and "in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection". The illustration to the rule puts the point plainly: A sues X and Y, obtains a decree against X alone, X appeals with A and Y as respondents, the Appellate Court decides in favour of X — "It has power to pass a decree against Y."
A Court with that power is not short of alternatives to sending the suit back.
What the choice decides
From the Bar the three dispositions can look like variations of the same outcome: the matter is not over, and something further has to happen in the Court below. In the Code they are distinct, and the distinctions run in the same direction.
A remand under Rule 23 or Rule 23A requires the decree to have been reversed, ends the appeal, restores the suit to the trial Court's register, carries the earlier evidence forward subject to just exceptions, and is appealable where an appeal would lie from the appellate decree. If it is appealable and no appeal is filed, Section 105(2) closes the point.
A reference under Rule 25 requires no reversal, does not end the appeal, produces a finding that becomes part of the record, is open to a memorandum of objections within the time the Appellate Court fixes, and is not appealable — which, under Section 105(1), means the objection to it survives into the appeal from the decree rather than being lost.
A final determination under Rule 24 requires that the evidence on record be sufficient, and is expressly permitted even where the Appellate Court proceeds on a ground the trial Court never touched.
The Code supplies the conditions for each and no rule for choosing between them. What it does supply is a consequence for not objecting, and it attaches that consequence to exactly one of the three. A party who wants the appeal decided rather than the suit retried has to say so before the order of remand is passed, and if it is passed over his objection, appeal it. There is no later occasion on which the Code allows him to raise it.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.