1. The 1st defendant is the appellant. The respondents-plaintiffs filed a suit for possession of item 1 with which I am concerned, from the defendants 1 and 2. who are father and son. In the alternative they sought partition with a request that Item 1 should be allotted to the 1st defendant so that the plaintiffs may get the same. It was alleged that the 1st defendant sold under Exhibit A-3 dated 12-10-1943 the first item to his second wife. This sale deed was executed with a view that the wife should come and stay with the 1st defendant. Since she did not come, the 1st defendant instituted O. S. No. 36 of 1947 for restitution of conjugal rights on 24-1-1947, Exhibit B-2.
On 11-4-1947 under Exhibit A-1 Chandramma, the second wife of the 1st defendant sold to the plaintiffs item 1 of course pending the suit O. S. 36 of 1947. The plaintiffs who had thus purchased item I gave notice to the 1st defendant on 14-7-1947, Exhibit B-1. The 1st defendant gave reply that the sale deed was void. Subsequently O. S. No. 36 of 1947 was decreed on 25-11-1947, Exhibit B-4 is the judgment.
2. The plaintiffs instituted the suit, O. S. No. 341 of 1951 before the District Munsif's court. Narasaraopet for possession as against the 1st defendant only. In view of some formal defect the suit was withdrawn with permission to file a fresh suit/ That is how the present suit O. S. 11 of 1956 was filed on 21-10-1955 for possession on the basis of the sale deed executed by the second wife of the 1st defendant.
3. The defence was that an alience, from a alience would not be entitled to any equity. I am not concerned with the other defences raised.
4. On 2-11-1957 the suit was dismissed. Appeal Suit No. 34 of 1956 was filed before the sub-court/ The sub-court allowed the appeal on 11-2-1959 and held that an alience from an alienee is entitled to equity. The appellate Court replied upon a Bench decision of this Court in Dakshinamurthi v. Sitharamayya 1958-1 Andh WR 85. Against that remand order the 1st defendant preferred a C. M. A. to this court. It was however dismissed on 7-4-1961.
5. Before C. M. A was actually disposed of, the suit after remand was decreed by the Trial Court on 24-4-1959. According to that decree the first item was allotted to the 1st defendant so that it might really go to the plaintiff. The 1st defendant filed A. S. 89 of 1959. The appeal was dismissed and the Trial Court's decree was confirmed. It is this concurrent view that is not challenged in this Second Appeal.
6. The only contention raised by Mr. G. Venkatarama Sastri, the learned Counsel for the appellant is that the Bench decision in Dakshinamurthi (supra) has been overruled by a Full Bench decision of this court in Gurunathan v. Venkata Rao., : AIR1959AP523 . I should therefore follow the Full Bench decision and hold that an alience from and an alience is not entitled to an equity. I do not think I can give effect to this argument. The remand order dated 11-2-1959 in which the bench decision was followed became final. It was confirmed by this Court on 7-4-1961. By that date, the Full Bench decision was already reported. The appellant in that case obviously did not bring to the notice of this Court the Full Bench decision with the consequences that this court also while confirming the order of remand passed by the sub-court virtually followed the Bench decision. The short question therefore is whether I can consider the question which has become final because of the order of remand confirmed by this court. I do not think I can consider that question afresh merely because the original suit has become a second appeal and the lis is pending.
7. Section 105(2) C. P. C. provides that if the party aggrieved by a order or remand from which an appeal lies does not appeal therefrom he cannot be subsequently question the correctness of the order or remand. In a case where the appeal is actually filed and disposed of that decision would be final and the point either by the Trial court to which the case goes back or by any other Court of appeal at a subsequent stage. Even apart from section 105(2) C. P. C. an order or remand under Order 41 Rule 23 C. P. C. as regards the Court passing the order is conclusive on all points decided thereby and those points cannot be reopened in that Court either before the same Judge or his successor in appeal from the decision of the Lower Court on remand. I have already stated that the order of remand came up for consideration to this court and it was upheld. I cannot therefore go into the question which was decided by this Court in the previous C. M. A.
8. I am fortified n my view by the following decision of the Supreme Court. In Satyadhyan v. Smt. Deorajin Debi, : 3SCR590 their Lordships held:
'The principle of res judicata applies also as between two stages in the same litigation to this extent that a court , whether the Trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings.
9. It was, however, argued by Sri. G. Venkatarama Sastri, the learned counsel for the appellant, that since the Division Bench decision , I am bound to take notice of the change in law and mould the relief accordingly. IN support of this contention , he relied upon the following two decisions: Lachmeshwar v. Keshwar Lal AIR 1941 FC 5 and Mohanlal v. Tribhovan. : 2SCR707 . There can be no quarrel in so far as the proposition of law that the hearing of an appeal is in the nature of re-hearing and therefore in moulding the relief to be granted in a case of Appellate Court entitled to take into account facts and events which have come in to existence after the decree appealed against and that Appellate Court is competent to take into account the latest changes since the decision interpreting the law in a particular way has been overruled by the Full Bench.
This proposition however, is subject to the finality attached to the remand order. Then the order passed under Order XLI Rule 23 C. P. C. has become final either because it was upheld by this court or because it operates as res judicata merely because the Bench has been subsequently overruled that finality does not come to an end and it is not permissible for this .Court to ignore the decision already given by this court and reconsider the matter in that light of the Full Bench decision.
10. It was then contented that the remand order is an interlocutory order and therefore in an appeal against the final decree I can go into the said question. Reliance was placed in this connection on : 3SCR590 . The following observation , however, would repel the contention:
'But and interlocutory order which had not been appealed from wither because no appeal lay or even though an appeal lay an appeal was not taken can be challenged in an appeal from the final decreed or order. A special provision is made in Section 105(2) Civil P. C. as regards order of remand. But even under Section 105(2) the correctness of an order of remand can be challenged in appeal from the final decision provided the order or remand is not appealable.
11. It will thus be clear that it is only in a case where the remand order is not appealable that the Appellate Court hearing the appeal from the final decree can consider the correctness of the order of remand. This is not a case of that type. The remand order passed was certainly appealable and an appeal was filed and considered by this Court. I find therefore no difficulty in rejecting this contention.
12. The second appeal fails and is dismissed with costs. No leave.
13. Appeal dismissed.