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Brij Bilas Vs. Salig Ram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1907)ILR29All659
AppellantBrij Bilas
RespondentSalig Ram
Excerpt:
civil procedure code, section 562 - remand--appeal from order of remand after decision of the suit in accordance therewith. - .....september 1906 the suit was remanded. on the 9th of november 1906 the court of first instance on remand decreed the suit. the present appeal is not taken against the decree that was made on the 9th of november 1906. it is an appeal filed against the order of remand, and the appeal was not filed until after the decree of the 9th november 1906 was actually made. the appeal was filed on the 1st december 1906. the appellant appeared on the hearing of the suit on remand. a preliminary objection is now raised by mr. kedar nath on behalf of the respondent that the present appeal cannot be sustained under the circumstances mentioned. he has cited the case of madhu sudan sen v. kamini kanta sen (1905) 9 c.w.n. 895. in this case under circumstances which cannot be distinguished from the case.....
Judgment:

George Knox, Acting, C.J. and Richards, J.

1. This is an appeal from an order of remand. The suit was a suit for pre-emption and on the 8th of June 1900 the Court of first instance dismissed the suit. The plaintiff appealed, and on the 10th of September 1906 the suit was remanded. On the 9th of November 1906 the Court of first instance on remand decreed the suit. The present appeal is not taken against the decree that was made on the 9th of November 1906. It is an appeal filed against the order of remand, and the appeal was not filed until after the decree of the 9th November 1906 was actually made. The appeal was filed on the 1st December 1906. The appellant appeared on the hearing of the suit on remand. A preliminary objection is now raised by Mr. Kedar Nath on behalf of the respondent that the present appeal cannot be sustained under the circumstances mentioned. He has cited the case of Madhu Sudan Sen v. Kamini Kanta Sen (1905) 9 C.W.N. 895. In this case under circumstances which cannot be distinguished from the case before us, a similar preliminary objection was taken and allowed by the Court, Mr. Gulzari Lal on the other side cites the Full Bench Ruling of Rameswar Singh v. Sheodin Singh (1889) I.L.R., 12 All., 510. In that case there had been an order of remand; the suit had been reheard by the Court of first instance who had made a decree. There was a second appeal to the lower appellate Court, which confirmed the decree of the Court of. first instance, and then there was an appeal against the second decree of the lower appellate Court. The Court there allowed the appellants to question the order of remand, but the appeal in that case was an appeal from a final decree and not an appeal from an order of remand. The case, therefore, is quite different from the present and does not apply. If we are now to hear this appeal, the decree that was made on the 9th November 1906 would still remain. Having allowed that decree to be made, the proper course was to appeal against that decree and at the hearing of the appeal to take such exception to the order of remand as the law permits, as was done in the Full Bench case to which we just now referred. We allow the preliminary objection, and in consequence we dismiss the appeal with costs.


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