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Narottam Rajaram Vs. Mohanlal Kahandas - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number Appeal from Order No. 29 of 1911
Judge
Reported in(1912)14BOMLR1154; 17Ind.Cas.891
AppellantNarottam Rajaram
RespondentMohanlal Kahandas
Excerpt:
.....why the first court's decree as such should have been reversed, for in the view taken by both the courts possession was to be restored to the mortgagor, the only difference between them being in small particulars of accounts necessitating a slight re-adjustment of the decree.;further, that a court of appeal can remand a case only when the trial court has disposed of the suit upon a preliminary point and the seoree is reversed in appeal.;the legislative removal of section 564 of the civil procedure code of 1882 has no other object but to withdraw those restrictive provisions of that section which in practice had been found embarrassing ; such restrictions occurring, for instance, in cases where the appellate court had allowed an amendment of the pleadings or had added a party to the..........inference should be that the legislature intended to confer on appellate courts an indiscriminate power of remanding cases, or at least a power so wide as to include and justify a remand in the particular case before us. we are, however, unable to draw that inference. in the first place, it may be doubted whether section 564, when it stood in the code, was at any time anything more than a provision inserted ex majored cartel for the guidance of the courts ; for if the only power of making a remand is conferred by section 563 it would appear superfluous to provide also that there should be no power of remand beyond that conferred by the section. however this may be, we think that sufficient reason for the removal of section 564 is to be found in the fact, to which the reports testify,.....
Judgment:

Batchelor, J.

1. The appellants before us are the plaintiffs and they sued for accounts and for redemption of certain mortgaged property under the Dekkhan Agriculturists' Relief Act. The trial Court took careful and elaborate accounts under the Act from a period so far removed as Samvat 1926. As a result it found that the mortgage, which was a mortgage with possession, had been paid off, and therefore decreed that possession should be restored to the plaintiffs on their payment of the mortgagee's costs.

2. The defendant appealed, and the learned First Class Subordinate Judge differed from the trial Court's findings as to certain items of the account and as to whether one particular parcel of the land mortgaged had been proved to have been in the mortgagee's possassion. He thereupon reversed the original decree and reminded the case for taking fresh accounts with reference to the observations in his judgment.

3. It is from this order that the plaintiffs bring this present appeal. The question, therefore, before us is, whether in the state of facts which we have described, an order of remand can lawfully be made. That is the sole question before us; and it must be understood that our judgment is confined to a decision on these facts.

4. Now the authority under which a Court of appeal is entitled to remind a case is to be found in Order XLI, Rule 23, which provides that such remand may be made by the appellate Court when the trial Court has disposed of the suit upon a preliminary point and the decree is reversed in appeal. This Rule 23 corresponds to Section 562 of the former Procedure Code. In that former Code there was also a Section 564, which enacted that an appellate Court should not remand a case for a second decision except as provided in Section 562. This Section 564, however, does not appear in our present Code.

5. The question is raised, what is the inference to be drawn from the legislative removal of Section 564? It is argued for the respondent that the inference should be that the Legislature intended to confer on appellate Courts an indiscriminate power of remanding cases, or at least a power so wide as to include and justify a remand in the particular case before us. We are, however, unable to draw that inference. In the first place, it may be doubted whether Section 564, when it stood in the Code, was at any time anything more than a provision inserted ex majored cartel for the guidance of the Courts ; for if the only power of making a remand is conferred by Section 563 it would appear superfluous to provide also that there should be no power of remand beyond that conferred by the section. However this may be, we think that sufficient reason for the removal of Section 564 is to be found in the fact, to which the Reports testify, that that section was found in its working to be awkward and embarrassing. Reference may be made to the decisions in Habit Bathsh v. Baldev Prasad ILR (1981) All 167 and Penumbra Near v. Subramanian Patter ILR (1899) Mad. 445, as instances of the lengths to which the Courts were driven to go in order to avoid the imperative restrictions imposed by Section 564. It would appear, therefore, that the removal of Section 564 had no other object but to withdraw those restrictive provisions of that section which in practice had been found embarrassing ; such restrictions occurring for instance in cases where the appellate Court had allowed an amendment of the pleadings, or had added a party to the record. This opinion seems to derive support from the remaining Rules in Order XLI, for those res. mining Rules seem to us to provide adequately that no unnecessary remands should be made by the Court of appeal. We refer for instance to Rule 24 which provides that where the evidence on the record is sufficient the appellate Court may determine the case finally; and in Rule 33 the appellate Court is armed with the power to pass any decree and make any order which ought to have been passed by the lower Court These Rules seem to us to show that the intention of the Legislature is to avoid remands wherever they can be avoided, and to ensure that in all cases where the Court of appeal is in possession of sufficient materials to form a judgment that Court shall record its own judgment on the materials before it and shall not waste time and put the parties to further costs by remanding to a Subordinate Court.

6. In the case before us the only difference between the two judges was in small particulars of accounts, and the only necessary alteration consequent upon the appellate Judge's view would have been a slight readjustment of the decree flowing from a small re-calculation of the amounts due. There was indeed no reason why the first Court's decree as such should have been reversed, for that decree provided that possession should be restored to the plaintiffs, and even upon the lower appellate Court's finding possession would also go to the plaintiffs, though possibly only upon condition of a certain payment by the plaintiffs to their mortgagee.

7. As to Section 151, which Mr. Theorem relied upon, we think that it has no relevance to the present argument. It was not, in our opinion, necessary for the ends of justice to withdraw the decision of the case from a Court of higher jurisdiction and to hand it over to a Court of lower jurisdiction. Nor do we feel pressed by the provisions of Section 99 of the Code, to which also Mr. Theorem appealed. The object of that section, as we read it, is to prevent higher Courts from reversing the substantive decrees of lower Courts on merely technical grounds : and the section supplies no reason why we should not now reverse precisely one of those orders of remand against which Section 99 is itself directed.

8. On these grounds we must reverse the order of the lower appellate Court and remand the appeal to that Court to be decided there on its merits.

9. The appellants must have their costs of the appeal.

10. The cross-objections by the respondent are dismissed with costs.


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