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Dinamani Debi Vs. Paramananda Choudhury and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 8 of 1977
Judge
Reported inAIR1980Ori177; 50(1980)CLT328
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2), 100, 104, 115 and 151 - Order 43, Rule 1
AppellantDinamani Debi
RespondentParamananda Choudhury and anr.
Appellant AdvocateR.K. Mohapatra, Adv.
Respondent AdvocateB. Pal, Adv.
Cases ReferredRameswar Rai v. Harakh Lal
Excerpt:
.....of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the..........ali, air 1935 cal 347 8. in the instant case, order 41, rule 23, c.p.c. would not apply as the suit was decreed by the trial court on merits and it was not disposed of on a preliminary point. rule 25 of order 41 is also not attractable in this case. as the impugned order of remand was made prior to the coming into force of rule 23-a of order 41 inserted by the amending act of 1976, it is referable to section 151, c.p.c. it may be pointed out that after the coming into force of the amended rule 23-a, the question of ordering a remand in the exercise of inherent powers under section 151, c.p.c. would not arise.9. section 104, c.p.c. provides for right of appeal against orders specified therein. that section provides:'an appeal shall lie from the following orders and save as otherwise.....
Judgment:

P.K. Mohanti, J.

1. This Civil Revision is directed against an order of remand passed under Section 151, Civil Procedure Code. When it was placed before a learned single Judge, the opposite party No. 2 (defendant No. 2) contended, on the authority of a Bench decision of this Court in the case of Sarder Bauri Bisoyi v. (Smt.) Surekha Sahuani, ILR (1974) Cut 1433, that the order of remand was appealable and the Civil Revision was not maintainable. Counsel for the petitioner having challenged the correctness of the Bench decision, the learned single Judge directed that the case may be placed before a learned Bench for a decision on the question of maintainability of the Civil Revision. Thereafter, the Civil Revision was placed before a Division Bench which referred it to a Full Bench as the correctness of the Bench decision was doubted.

2. The facts giving rise to this Civil Revision, in a nutshell, are as under:

The petitioner as plaintiff brought O. S. No. 30/102 of 1974/69 for declaration of title and recovery of possession in respect of the suit lands on the allegation that the suit lands originally belonged to opposite party No. 1 (defendant No. 1) who sold the same to the plaintiff (petitioner) by a registered sale deed dated 26-6-67 for a consideration of Rs. 2,000. It was alleged that out of the total consideration, a sum of Rs. 1,500 was received by the defendant No. 1 from the plaintiff in presence of the Sub-Registrar and it was agreed between them that the balance consideration of Rs. 500 would be paid at the time of endorsement of the registration ticket. Thereafter, the defendant No. 1 received the balance consideration of Rs. 500 on 25-8-67 and promised to endorse the registration ticket and to deliver possession of the suit lands in favour of the plaintiff, but he failed to do so despite, repeated demands. It was further alleged that defendant No. 1 in collusion with defendant No. 2 had executed a nominal sale deed in favour of the latter with a view to defraud the plaintiff and hence the plaintiff was compelled to come to Court.

3. Defendant No. 1 did not enter contest. Defendant No. 2 resisted the suit on the allegation that defendant No, I had executed an agreement for sale in his favour on 4-6-67 for a consideration of Rs. 1,500 and had received Rs. 1,300 from him towards part consideration and delivered possession of the suit lands promising to execute the sale deed in his favour within a month after receiving the balance consideration of Rs. 200. Thereafter, defendant No. 1' executed a sale deed in favour of defendant No. 2 on 18-3-68 on receipt of Rs. 200. While admitting the execution of the sale deed by defendant No. 1 in favour of the plaintiff, the defendant No. 2 disputed the passing of title thereunder.

4. The trial Court decided all the nine issues framed in the suit and came to hold that the agreement of sale in favour of defendant No. 2 by defendant No. 1 was neither genuine nor valid and that the sale deed Ext. 1 executed by defendant No. 1 in favour of the plaintiff was not to defeat the contract of sale (Ext. B), Accordingly, it decreed the plaintiffs suit.

5. On appeal by defendant No. 2, the lower appellate Court by its judgment dated 2-12-76 set aside the decision of the trial Court and remanded the suit for fresh disposal after framing two new issues and allowed the parties to adduce evidence on those two issues. The Civil Revision is directed against the aforesaid order of remand.

6. The question for consideration is whether an appeal lies against the aforesaid order of remand and whether the Civil Revision is incompetent.

7. In Bisoyi's case (ILR (1974) Cut 1433) the Division Bench held that the order of remand came within the ambit of Order 41, Rule 23, Civil P.C. Yet, it was observed:

'Even otherwise, if this order of remand is treated as one made in exercise of the inherent powers of the Court, that order so made would be a decree which reversed the decree of the trial Court and deprived defendant No. 8 of the valuable right he had acquired thereunder. The Second Appeal was, therefore, competent under Section 96, Civil P. C. read with Section 100 thereof.'

For this conclusion reliance was placed on two decisions of the Calcutta High Court reported in Bhairab Chandra v. Kali Kumar, AIR 1923 Cal 606 and Mahammad Ali v. Karam Ali, AIR 1935 Cal 347

8. In the instant case, Order 41, Rule 23, C.P.C. would not apply as the suit was decreed by the trial Court on merits and it was not disposed of on a preliminary point. Rule 25 of Order 41 is also not attractable in this case. As the impugned order of remand was made prior to the coming into force of Rule 23-A of Order 41 inserted by the Amending Act of 1976, it is referable to Section 151, C.P.C. It may be pointed out that after the coming into force of the amended Rule 23-A, the question of ordering a remand in the exercise of inherent powers under Section 151, C.P.C. would not arise.

9. Section 104, C.P.C. provides for right of appeal against orders specified therein. That section provides:

'An appeal shall lie from the following orders and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders.'

An order under Section 151, C.P.C. does not come within the ambit of Section 104, C.P.C. In view of the plain language used in this section, no scope is left for raising any controversy on a question of right of appeal against an order under Section 151, C.P.C. An appeal is always a creature of statute and it is only when an order has been expressly made appealable by the Code that the appeal would lie. The Court's jurisdiction to entertain an appeal is founded upon the express provisions of law. It is, therefore, obvious that if an order is passed under Section 151, C.P.C. no appeal lies under Order 43, Rule 1, C.P.C.

10. The question of the appealability of an order of remand under Section 151, C.P.C. was the subject-matter of decision by this Court as well as by other High Courts and the consensus of opinion is that no appeal lies against the order but a revisional application can be filed before the High Court against such an order. The cases which have taken such view are: Narahari Mohanti v. Ghanshyam Bal, AIR 1963 Orissa, 186; Baisnab v. Parma, AIR 1964 Orissa 156; Banthu Kisan v. Dukhi Kisani, 1972 (2) Cut WR 1964; Raghunandan Singh v. Jadunandan Singh, AIR 1918 Pat 505 (1); Permanand Kumar v. Bhon Lohar, AIR 1926 Pat 457; Chandrika Prasad Singh v. Mithu Rai AIR 1927 Pat 296; Mst. Bibi Qamrun v. Mohammad Ali Sabir, AIR 1952 Pat 437; Trustees of Religious Public Trust of Salam Jamadar's Mosque v. Vaghri Sana Ratna, AIR 1972 Guj 162; Mrigendra Kumar v. Sidheshwar Shit, AIR 1966 Cal 310; Kalipada Dinda v. Kartick Chandra Hait, AIR 1977 Cal. 3; Haji Muzahir Ali v. Lachman Prasad, AIR 1954, All 559; Jindu v. State, AIR 1957 Him Pra. 61 and Madholal v. Bridhichand, AIR 1951 Raj 58. We are in respectful agreement with the view expressed in the above cases,

11. An order of remand under Section 151, C.P.C. is appealable only when it amounts to a decree. Where the order of remand merely sets aside the decree of the trial Court and does not itself decide any of the points raised for determination and does not determine the rights of the parties with regard to any of the matters in controversy in the suit, it cannot amount to a decree and must be treated as an order. The mere fact that the order reverses the decree of the trial Court and deprives a party of the valuable right it had acquired thereunder would not make an order of remand a 'decree', unless that order itself determines any of the points arising for determination in regard to the matters in controversy in the suit.

12. Now the question arises whether a decision such as the impugned one is a decree or not. The definition of 'decree' indicates that it must be a formal expression of an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit. There may be cases where the appellate Court itself decides finally certain aspects in dispute and thus passes a decree but in regard to certain other matters it directs the trial Court to reach final determination. In such cases the decision of the appellate Court amounting to a decree may be appealable. That, however, is not the case here. The impugned order clearly indicates that it is not a decree. The appellate Court, in passing the order of remand, did not conclusively determine anything on the merits of any of the disputes between the parties and left the entire matter for decision to the trial Court. The mere fact that the decree of the trial Court has been set aside, would not thus make the order of remand a decree and appealable as such. To state otherwise, there is no final adjudication by the appellate Court of the rights of the parties by the order of remand, Therefore, it cannot be treated as a decree. The order indicates that pursuant to the remand, the trial Court must proceed to determine the suit. Thus, the determination of the suit is yet to come and that depends upon the adjudication by the trial Court. Such adjudication consequent on the remand would result in the decree. In such circumstances, a Second Appeal could not lie to this Court, The only remedy which was open to the petitioner was to approach this Court by a revisional application. With very great respect to the learned Judges, we are unable to agree with the view expressed in ILR (1974) Cut 1433.

13. In that case, reliance was placed on a decision of the Calcutta High Court in the case of Bhairab Chandra Dutt v. Kali Kumar, AIR 1923 Cal 606 where the order of remand had been made under Section 151, C.P.C. directing a retrial of the suit and their Lordships held that the order so made was a decree and an appeal was, consequently competent, not as an appeal from order under Order 43, Rule 1, Sub-rule (u), but as an appeal from a decree under Section 96 of the Code read with Section 100. This decision was considered by a Division Bench of the Patna High Court in the case of Permanand Kumar v. Bhon Lohar, AIR 1926 Pat 457. Their Lordships dissented from the view expressed in the Calcutta case and observed:

'With very great respect to the learned Judges, I am unable to agree with the view taken by them. I fail to understand how an order of remand under the inherent power of the Court can be treated as a decree unless the order can be brought within the definition of 'decree' as given in the Code of Civil Procedure; ......'

A Bench of the Calcutta High Court in Banka Behari v. Birendra Nath, AIR, 1927 Cal 850 examined the maintainability of an appeal for assailing an order of remand not deciding finally any question in dispute, referred to several earlier authorities of the Court and did not approve of the ratio in Bhairab Chandra Dutt's case. Several subsequent Calcutta cases have followed the view in Banka Behari Deb's case.

In the case of Mahammad Ali v. Karam Ali, AIR 1935 Cal 134, their Lordships held that although the provisions of Order 41, Rule 23 might not strictly apply where the Court on appeal has remanded the suit to the first Court which has been asked to determine finally the suit by the order of remand, an appeal to the High Court is permissible under the provisions of Order 43, Rule 1, C.P.C. It appears to us that the proposition is contrary to the express terms of Section 104, C.P.C. which categorically provides that except in the cases provided for in the Code, (i.e. in Order 43) no order is appealable. Since the right of appeal is a creature of statute, there was no scope for the view taken in AIR 1935 Cal 134. At any rate the two Calcutta cases relied upon in Bisoyi's case ILR (1974) Cut 1433 have not only been not approved and followed in the Calcutta High Court and thus had lost their precedent value but run counter to the law laid down by the Patna High Court in a series of cases. On the basis of the principle indicated in the case of Rameswar Rai v. Harakh Lal, AIR 1942 Pat 226, the decisions of the Patna High Court are binding on this Court and a Division Bench should ordinarily have felt bound by the settled Patna view, We may point out that the impugned view in Bisoyi's case was not material for the disposal of the case and was said only by way of obiter. Even Mr. Pal appearing for the opposite parties who could have succeeded in defeating the proceeding by supporting the impugned view did not seek to stand on it and conceded that the legal position was otherwise.

14. In the premises aforesaid, we conclude that no appeal lies against the order of remand and that the Civil Revision is maintainable.

15. The Civil Revision may now be placed before the learned single Judge for disposal on merits.

K.N. Misra, J.

I agree.

K.B. Panda, J.

I agree.


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