1. The question which has been referred to this Full Bench arises in an appeal instituted by Mt. Chauli alias Subhadra Devi. She instituted the suit, which gave rise to the appeal, in order to obtain possession over an enclosure or gher, the whole of the village of Somli and a share of five biswas in the village of Nanadur. These properties originally belonged to Amolak Ram who left him surviving on his death three daughters, Mt. Parmeshri who died in 1905, Mt. Lachhmi who died in 1910 and Mt. Barfi who died' in 1922. Mt. Chauli is the daughter of Mt. Lachhmi. This was a joint family of Jains and it is admitted that the daughter's daughter would have preference in respect of self-acquired property over a daughter's son but that a daughter's son would succeed to the ancestral property in preference to a daughter's daughter. It thus became necessary to decide which of the properties in suit were self-acquired and which were ancestral. The trial Court held that Somli village was ancestral property, that the enclosure was acquired with the aid of an ancestral nucleus of property and that the share in Nandpur was self-acquired. In view of certain transfers by the daughters of Amolak Ram, the Court found that the plaintiff was entitled to recover possession only of one-third of five biswas of the village of Nandpur. It gave her a decree for that share with mesne profits and dismissed the suit for the recovery of the rest of the property. The appeal was first heard by a Bench of this Court (Thorn C. J. and Ganga Nath J.). The learned Judges found that half the village of Somli and the whole of the gher or enclosure was self-acquired and that there was no legal necessity for the transfer of any part of the five biswas in the village of Nandpur but they found it necessary to remit three issues to the trial Court in order to discover what amount, if any, was due on account of mesne profits in respect of the village of Somli and the gher and what compensation, if any, was due 'to some of the defendants on account of improvements made to the gher. The trial Court recorded findings on these issues and when the case came up before another Bench, Collister and Bajpai JJ. the question arose whether the learned Judges were bound by the findings of the first Bench. The learned Judges referred the following question to a Full Bench:
Whether and to what extent, in the circumstances of the present case, the findings at which the former Bench had arrived in this case on the earlier occasion are binding upon this Bench?
2. In the first place, I must make it clear that the decision of a single Judge of this Court or of a Bench of this Court is the decision of the Court and that it follows that the position of the second Bench was exactly the same as would have been the position of the first Bench if the appeal had come up before the same Judges again when findings on the issues were submitted by the trial Court. If the learned Judges of the first Bench would have been entitled to reconsider their previous findings the learned Judges of the second Bench are similarly so entitled. If the learned Judges of the previous Bench had not been entitled to reconsider their findings, then the learned Judges of the second Bench would equally not be so entitled. In order to simplify the matter, therefore, I propose to consider whether the learned Judges who constituted the first Bench could have reconsidered their findings, in the circumstances of this case, if the appeal had come up before them again after the findings on the remitted issues had been submitted by the lower Court. As a matter of principle, it is necessary to consider three positions. The learned Judges may either be bound, in law, to reconsider the case and record new findings which may or may not be the same as the findings previously recorded or they may be bound to accept their findings so as not to be entitled to reconsider the matter at all or the question may be one of discretion, namely, that they may refuse to re-hear the arguments and record fresh findings or they may consent to do so. I do not think that any Court can be bound to re-hear arguments which it has once heard and to reconsider a matter which it has decided. Every party is entitled to place his case fully before theCourt but once he has done so his right is extinguished. In the present case, the parties had apparently full opportunity to put their cases before the first Bench before issues were remitted and, consequently, it seems to me that the Court would have been justified in refusing to go into the disputed questions again. The first position, therefore, in my judgment is untenable.
3. On the other hand, it cannot be said that any -question has been finally determined until it leads to some action, that is, to a decree which may be executed or an order which must be carried into effect. When issues are remitted in a case of this kind, the only order which can be carried into effect is that lower Court must try the issues and submit the finding Section Any other findings which are recorded cannot be carried into effect until an ultimate decree is passed. One can well imagine circumstances in which it might be quite clear that the original findings were erroneous and it seems impossible to me that the Court when it came to pass its decree, would be compelled to pass an erroneous decree as the result of those finding Section It might be, for instance, that a question of law was involved which in the meanwhile had been settled by a superior Court in such a way as to render the previous findings wrong. It may also be that the previous findings can be shown to have been based on a misconception due to some oversight or misapprehension. I understand that the question has arisen in this appeal because certain documents were printed and placed before the first Bench although they were not upon the record and this fact was overlooked by the parties to the appeal. I think it would be impossible to insist that a Court should pass a decree ultimately knowing that it was wrong and I, therefore, think that the second position is as untenable as the first.
4. This leaves us with the third position which I think is the right one, In my judgment, the Court is quite entitled to say that it will not give the parties further opportunity to agitate a matter which it has decided after full consideration but that the learned Judges, if they think some special reasons exist why they should reconsider their previous opinion, are entitled to do so. and to come to a just and light conclusion. The Court is not bound by a decision till it is functus officio, as it would be after an order of remand properly so called.
5. We have been referred to a number of ruling Section The first is the case in A. I. R. 1917 cal. 701: 32 I.C. 866, Hira lal Pal v. Etbar Mandal In that case the lower appellate Court had pass an order of remand which was set aside by the High Court with a direction that two issues should be remitted. When the findings on the remitted issues were returned, the Judge of the lower appellate Court who had passed the order of remand had been transferred and succeeded by another Judge who refused to reconsider the findings of his predecessor on the points which had already, before the issues were remitted, come up for decision. The learned Judges of the High Court decided that he was entitled to do so. The necessary finding in this case is not contrary to my opinion although some of the dicta in the judgment of one of the learned Judges might suggest that there were occasions on which a Court might not be entitled to reconsider its own decision arrived at when issues had been 'remitted. This learned Judge seems to have thought that in some cases decisions of this kind might amount to a preliminary decree but the other learned Judge does not appear to have agreed with him. There can be no question of a preliminary decree in the case with which we are dealing. A decree is a formal document which must be drawn up in accordance with some decision of a Court. There was no question of drawing up any formal document in the case with which we are dealing. A finding in itself is not a decree.
6. The next case is A.I.R. 1923 Cal. 521: 74 I. C. 392, Kamini Kumar Deb v. Durga Charan Nag That case is not in point. The High Court had passed an order remitting issue Section When the findings were returned it was urged that it had no jurisdiction to do so. It is clear that a Court once having passed an order remitting issues could not say that the order was wrong or that it could not be carried into effect. That does not mean that it cannot reconsider its opinions on other issues which may have been expressed at the time when the order was passed. The learned Judges remarked in that case that the appeal was still open after the findings were submitted. Another case is 32 Bom. 432. , Balvant Bamehandra v. Secy, of State That was a case where a previous decision of a Bench of the Bombay High Court when issues were remitted was before another Bench. The learned Judges said:
That judgment is, no doubt, binding upon us quoad all points which are therein specially decided beyond possibility of revision. But it would, we think, be otherwise in regard to any part of the judgment which can be shown to be grounded on such mistake or error as it would have been the duty of that Bench to correct, if it had been brought to notice when the judgment was delivered. In so far as any part of the judgment is based upon an assumption or hypothesis which is now ascertained to be erroneous, it is, we think, competent to us--or rather, it is incumbent on us -- to disregard it, and to re-open that portion of the case affected by the error.
7. That is a view with which I concur.
8. In ('88) 10 All. 162, Lachman Prasad v. Jamna Prasad. it was held that the Court after the return of findings on issues remitted was entitled to reconsider the whole case de novo and in fact in that case the Bench which 'finally passed the decree disagreed with the opinions of the Bench expressed at the time when issues were remitted. I consider that this is the right view to be taken. The same view was taken in ('94) 16 All. 306, Mubarak Husain v. Bihari. and in ('21) 8 A. 1. B. 1921 All. 276 : 43 All. 377 : 60 I. C. 975, Masih-un-Nissa Bibi v. Kaniz Sughra Bibi and also in ('23) 10 A. I. B. 1923 All. 384 : 74 I. C. 1014, Gopi Nath v. Sat Narain The opposite view may perhaps be said to have been taken in ('20) 7 A. I. B. 1920 Mad. 900 : 53 I. C. 677, Sajjada Shah Mahomed TJsuf v. Shah Habit but that was a case in which the Court had finally directed that a scheme should be drawn up on certain lines and the matter came before the Court again when the scheme was submitted and it is open to argument that the order directing that a scheme should be drawn up in a certain way was an order which had to be carried into effect and which consequently was not open to reconsideration by another Bench. The only case which may suggest that a Court cannot, at the time of passing an ultimate decree, reconsider any opinion which may have been previously expressed is ('33) 20 A. I. R. 1933 Lah. 423 : 144 I. 0. 973, Mast Earn v. Muhammad Khalil In that case the District Judge had passed an order of remand under 0.41, E. 23. 'The High Court in second appeal set aside the order of remand 'passed by the District Court and remanded the case to that Court with a direction that issues should be remitted. After the findings on those issues had been submitted, the District Judge disagreed with the findings on certain points expressed in his predecessor's order of remand. It was held by a learned Single Judge of the Lahore High Court that he was not entitled to do so. I am of opinion, with the greatest respect, that the decision was not right in principle and that the weight of authority is against it. As far as this Court is concerned, the authorities seem to be all one way. My answer to the question referred to us is that the Bench which will now hear the appeal is not bound by the findings at which the former Bench has arrived but that it is entitled, in its discretion, if it so desires, not to reconsider the findings.
9. I agree.
10. I also agree.
11. Our answer to the question referred to us is that the Bench which will now hear the appeal is not bound by the findings at which the former Bench has arrived but that it is entitled, in its discretion if it so desires, not to reconsider the findings.