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Mt. Dulia and anr. Vs. Ram NaraIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1934All455a; 147Ind.Cas.437
AppellantMt. Dulia and anr.
RespondentRam NaraIn and ors.
Cases ReferredMoti Lal v. Nandan
Excerpt:
- .....of the appellant is that by reason of a recent amendment by the allahabad high court in order 43, rule 1, clause (u) an appeal has been permitted. order 43, rule 1, clause (u) before the amendment stood as follows:an order under rule 23, order 41 remanding a case where an appeal would lie from the decree of the appellate court.3. after the amendment the rule runs as follows:any order remanding a case where an appeal would lie from the decree of the appellate court.4. it is therefore contended that the amendment has made every order appealable by which proceedings even for a short time have been sent back to the trial court. that is not the real reason or meaning of the amendment. the amendment was made because it happens that sometimes an order of remand is made which does not come.....
Judgment:

Bajpai, J.

1. This is an appeal from the following order of the Court below dated 26th January 1933:

For the ends of justice it is necessary to obtain definite findings from the trial Court on the following issues.... The finding shall be returned to this Court within six weeks and the parties will be at liberty to file objections there to according to law.

2. A preliminary objection has been taken on behalf of the respondent that no appeal lies to this Court from an order by which the appellate Court has framed certain issues and referred them for trial to the first Court. The reply of learned Counsel on behalf of the appellant is that by reason of a recent amendment by the Allahabad High Court in Order 43, Rule 1, Clause (u) an appeal has been permitted. Order 43, Rule 1, Clause (u) before the amendment stood as follows:

An order under Rule 23, Order 41 remanding a case where an appeal would lie from the decree of the appellate Court.

3. After the amendment the rule runs as follows:

Any order remanding a case where an appeal would lie from the decree of the appellate Court.

4. It is therefore contended that the amendment has made every order appealable by which proceedings even for a short time have been sent back to the trial Court. That is not the real reason or meaning of the amendment. The amendment was made because it happens that sometimes an order of remand is made which does not come within the four corners of the language of Rule 23, Order 41, Civil P.C., and yet such an order of remand is justified inasmuch as it is passed in the exercise of the inherent jurisdiction of the Court or under the provisions of Section 151, Civil P.C. But only those orders are appealable where the entire case has been transferred from the first appellate Court to the trial Court and not where only certain issues have been remitted. The same view was taken by the Oudh Chief Court where also the amendment of Clause (u) has been similar to ours, in the case of Sarabjit Singh v. Farahatulla A.I.R. 1930 Oudh. 366 and the case of Moti Lal v. Nandan : AIR1930All122 also lends support to our view. Upholding the preliminary objection, we dismiss this appeal with costs.


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