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Perimbra Nayar and ors. Vs. Subrahmanya Pattar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1900)10MLJ61
AppellantPerimbra Nayar and ors.
RespondentSubrahmanya Pattar and ors.
Excerpt:
- .....vakil contends that the lower appellate court had no power under sections 562 and 564 of the civil procedure code to remand the suit for retrial, and that, therefore, the order appealed against is wrong. it is true the remand in this case was not made on grounds which come within the language of section 562, civil procedure code, which provides for a case where there has been a decision upon a preliminary point which is reversed by the appellate court. but we think that, notwithstanding-those sections, an appellate court has inherent power-in a case, such as the present, not only to reverse a decree passed on evidence given by the plaintiff only, the defendant being exparte, but also to direct a retrial of the case. for it has that power on an appeal against an order passed on an.....
Judgment:

1. The appellants vakil contends that the lower Appellate Court had no power under Sections 562 and 564 of the Civil Procedure Code to remand the suit for retrial, and that, therefore, the order appealed against is wrong. It is true the remand in this case was not made on grounds which come within the language of Section 562, Civil Procedure Code, which provides for a case where there has been a decision upon a preliminary point which is reversed by the Appellate Court. But we think that, notwithstanding-those sections, an Appellate Court has inherent power-in a case, such as the present, not only to reverse a decree passed on evidence given by the plaintiff only, the defendant being exparte, but also to direct a retrial of the case. For it has that power on an appeal against an order passed on an application under Section 108 of the Civil Procedure Code refusing to set aside an exparte decree; and it can hardly be supposed, therefore, that if on an appeal against such an exparte decree it considers that the decree ought to be set aside and a retrial had, it has not the same power. We are of opinion, therefore, that the order of the Subordinate Judge which does not purport to be under Section 562 or any other particular section of the Civil Procedure Code was within his powers. The appellant's vakil sought in the course of his argument to raise the contention that the Lower Appellate Court could not go into the question whether the exparte, decree of the Munsif ought to be set aside, because the order of the Munsif made subsequently to his decree and refusing to allow the 2nd defendant's application under Section 108, Civil Procedure Code, was not appealed against. But this point was not raised in the grounds of appeal to this Court, nor before the Lower Appellate Court, and we cannot permit it to be raised now. The appeal, therefore, fails, and is dismissed with costs.


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