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Khant Jadav Naja and anr. Vs. Patel Raja Kachra Rakholia and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberA.T.O. No. 68 of 1960
Judge
Reported inAIR1963Guj336; (1964)0GLR222
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rules 23 and 25
AppellantKhant Jadav Naja and anr.
RespondentPatel Raja Kachra Rakholia and anr.
Appellant Advocate B.S. Kapadia, Adv. for; M.P. Sheth, Adv.
Respondent Advocate P.V. Hath, Adv.
DispositionAppeal allowed
Excerpt:
- v.b. raju, j.1. the assistant judge, rajkot district, gondai, thought that the additional issue, namely whether respondent no. 3 had a right to sell the property, was necessary. he, therefore, set aside the decree of trie trial court and remanded the whole suit for re-trial. in the circumstances, the learned judge should have followed the provisions of order 41, rule 25, and should not have remanded the suit. under order 41, rule 23, c. p. code, which contemplates remand only when the suit is decided on a preliminary point and the decree is reversed in appeal.2. the order passed by the learned assistant judge, gondal, is therefore set aside and the issue framed by the learned assistant judge is referred to the trial court under order 41, rule 25, c. p. code. the trial court shall proceed.....
Judgment:

V.B. Raju, J.

1. The Assistant Judge, Rajkot District, Gondai, thought that the additional issue, namely whether respondent No. 3 had a right to sell the property, was necessary. He, therefore, set aside the decree of trie trial Court and remanded the whole suit for re-trial. In the circumstances, the learned Judge should have followed the provisions of Order 41, Rule 25, and should not have remanded the suit. under Order 41, Rule 23, C. P. Code, which contemplates remand only when the suit is decided on a preliminary point and the decree is reversed in appeal.

2. The order passed by the learned Assistant Judge, Gondal, is therefore set aside and the issue framed by the learned Assistant Judge is referred to the trial Court under Order 41, Rule 25, C. P. Code. The trial Court shall proceed to try such issue and shall return the evidence to the appellate Court, that is, to the District Court at Rajkot, together with its finding thereon and the reasons therefor. The appellate Judge, namely the District Judge, Rajkot, should then decide the appeal in accordance with the provisions of Order 41, Rule 25, Civil Procedure Code. No order as to costs.


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