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Nazir Khan Vs. Ganesh Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. No. 60 of 1968
Judge
Reported inAIR1973All93
ActsAllahabad Code of Civil Procedure (CPC) , 1908 - Sections 47 and 151 - Order 41, Rule 23 - Order 43, Rule 1
AppellantNazir Khan
RespondentGanesh Prasad and ors.
Appellant AdvocateRaja Ram Agarwal, Adv.
Respondent AdvocateSidheshwari Prasad, Adv.
DispositionAppeal allowed
Excerpt:
civil - order 41, rule 23, order 43, rule 1 (c) and section 151 of code of civil procedure, 1908 - decree holder applicant executed decree - objection made by respondent - objection dismissed by executing court - judgment debtor filed appeal under section 47 of code of civil procedure, 1908 - all points raised in objection under section 47 had not been heard - held, decision would not be one under section 151 but order 41, rule 23 of code of civil procedure, 1908. - - this being so, this order is clearly appealable as provided under order 43, rule 1, clause (e), c......under section 47, c.p.c. were not decided by the executing court and, therefore, allowing the appeal, remanded the case for rehearing. it is against this remand order that the decree-holder appellant has filed this first appeal from order.2. a preliminary objection has been raised by the learned counsel for the respondents that the order of remand was passed under section 151, c.p.c, and, therefore, this order is not appealable under order 43, rule 1, clause (e). in support of this contention, the following decisions have been cited:1. baisnab padhan v. parma padhan : air1964ori156 . 2. chandra mohan sahay v. union of india, air 1953 assam 193. 3. mrigendra kumar majumdar v. sidheswar shit : air1966cal310 . 4. vaithilingam pillai v. kandaswami pillai, air 1931 mad 1. 5. manipur.....
Judgment:

K.N. Srivastava, J.

1. This First Appeal from Order arises out of the following facts:

The decree-holder appellant executed a decree and the respondents filed an objection under Section 47, C.P.C. His objection was dismissed by the executing Court. Being dissatisfied, the judgment-debtor filed an appeal. The lower appellate Court held that all the points raised in the objection under Section 47, C.P.C. were not decided by the executing Court and, therefore, allowing the appeal, remanded the case for rehearing. It is against this remand order that the decree-holder appellant has filed this First Appeal from Order.

2. A preliminary objection has been raised by the learned counsel for the respondents that the order of remand was passed under Section 151, C.P.C, and, therefore, this order is not appealable under Order 43, Rule 1, Clause (e). In support of this contention, the following decisions have been cited:

1. Baisnab Padhan v. Parma Padhan : AIR1964Ori156 .

2. Chandra Mohan Sahay v. Union of India, AIR 1953 Assam 193.

3. Mrigendra Kumar Majumdar v. Sidheswar Shit : AIR1966Cal310 .

4. Vaithilingam Pillai v. Kandaswami Pillai, AIR 1931 Mad 1.

5. Manipur State Bank Ltd. v. Nathmal Mohata, AIR 1958 Manipur 22.

3. All these decisions do not apply to the fads of the present case. In all these decisions, the remand was made on a preliminary point and in the interest of justice. Order 41, Rule 23, C.P.C. has been amended by this Court and the words which have been inserted after the words 'and the decree is reversed in appeal' are 'or where the appellate Court while reversing or setting aside the decree under appeal considered it necessary in the interest of justice to remand the case,...it'. The words 'the appellate Court' and the words 'if it thinks fit' were deleted. Thus by this amendment, the Court is empowered under Order 41, Rule 23, C.P.C. to remand a case where in their opinion justice so demands. In the instant case, as I shall presently show, the case was remanded for the sake of justice because all the points raised in the objection under Section 47, C.P.C. had not been heard. Therefore, the above rulings do not apply to the present case and the decision in the present case would not be one under Section 151, C.P.C. but under Order 41, Rule 23, C.P.C. This being so, this order is clearly appealable as provided under Order 43, Rule 1, Clause (e), C.P.C.

4. A perusal of the judgment of the executing Court would show that one of the objections was that the judgment-debtor had no other property from which the decretal amount could be realised. It appears that although a number of grounds were taken in the objection under Section 47, C.P.C., only a few of them were pressed, which did not find favour with the executing Court

5. Even In the grounds of appeal, no ground was taken by the judgment-debtor that he was not heard by the executing Court in respect of all the objections he had taken. If the judgment-debtor did not press all his objections and contented himself by pressing only a few of them, the blame was his rather than of the executing Court. The lower appellate Court, therefore, was not correct in saying that all the grounds taken by the judgment-debtor in his objection under Section 47, C.P.C. werenot decided by the executing Court. On this ground alone, the appeal should not have been allowed and the case should not have been remanded, specially when there was nothing on the record to sustain the point. Even the judgment-debtor had not put any affidavit that all the grounds taken by him in his objection were not allowed to be pressed by the executing Court.

6. It was next argued that the appellant will not suffer any substantial loss because after the remand, the parties would be at liberty to press their points and to get justice from the executing Court. This argument has no force in it. The executing Court had dismissed the objection which the respondents had filed under Section 47, C.P.C. This order has given a right to the appellant and the order of remand was without any just and proper cause and, therefore, if the order of remand is allowed to remain, a substantial injury is likely to cause to the applicant.

7. In this view of the matter, the First Appeal from Order succeeds. It is hereby allowed. The order of remand is set aside and the case is sent to the lower appellate Court for hearing the appeal on merits and deciding it in accordance with law. The cost of this appeal shall abide the result of the decision of the appeal by the lower appellate Court.


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