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Thirumalaiswamy Mudali Vs. Periasami Mudali and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 346 of 1949
Judge
Reported inAIR1952Mad66; (1951)2MLJ532
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 23
AppellantThirumalaiswamy Mudali
RespondentPeriasami Mudali and anr.
Appellant AdvocateS. Ramachandra Iyer, Adv.
Respondent AdvocateA. Sundaram Iyer, Adv.
DispositionAppeal allowed
Cases ReferredKalahasti Estate v. Ramasami Reddi
Excerpt:
.....of remand - order 41 rule 23 of code of civil procedure, 1908 - appeal against order of lower appellate court remanding case to trial court - order of remand passed by lower appellate court illegal as contrary to provisions of order 41 rule 23 - lower court acted without jurisdiction in remanding case without coming to conclusion that decision of trial court wrong - order set aside and sent back to lower appellate court for disposal on merits. - - as there is lacuna in the evidence with reference to this portion of the case, in my opinion, it is better to send back the case to the trial court for the purpose of taking full evidence on this matter'.(5) the plaintiff who is aggrieved by this order has come up in appeal to this court. 6. in the present case the order of remand is..........rise to this appeal was instituted by the appellant herein for ejecting the respondents from the suit properties which were purchased by him at a court auction sale on 7-12-1944. a few material facts may usefully be stated here: one varadarajan filed o.s. no. 71 of 1927 in the sub court, vellore for partition of the family properties and for separate possession of his share against two persons veerasami and kaniappan. a preliminary decree was passed by the trial court and in appeal against that decree a stay of final decree proceedings was obtained on condition that the judgment debtors should furnish security for a sum of rs. 12000. in pursuance of that order the judgment-debtors, that is, kantappan and veerasami furnished the suit properties as security in addition to a third party.....
Judgment:

Chandra Reddi, J.

1. This appeal is against the order of the Subordinate Judge of Vellore remanding the case to the trial Court. The suit which has given rise to this appeal was instituted by the appellant herein for ejecting the respondents from the suit properties which were purchased by him at a Court auction sale on 7-12-1944. A few material facts may usefully be stated here: One Varadarajan filed O.S. No. 71 of 1927 in the Sub Court, Vellore for partition of the family properties and for separate possession of his share against two persons Veerasami and Kaniappan. A preliminary decree was passed by the trial Court and in appeal against that decree a stay of final decree proceedings was obtained on condition that the judgment debtors should furnish security for a sum of Rs. 12000. In pursuance of that order the judgment-debtors, that is, Kantappan and Veerasami furnished the suit properties as security in addition to a third party security. Ultimately the appeal was dismissed and stay dissolved. On taking accounts it was found that the judgment-debtors were liable to pay the decree-holder a sum of Rs. 25000 and a decree followed for this amount, besides the decree for partition. In execution of this decree, the suit properties along with other properties were brought to sale and in the Court auction the appellant purchased properties covered by lot No. 2 for a sum of Rs. 4500 on 7-12-1944 and took delivery of those properties.

2. The present suit which has given rise to this appeal was instituted by the Court auction purchaser, i.e., the appellant herein on the allegation that subsequent to his taking possession of the suit properties the respondents herein trespassed on them. The main defence to the suit was that title to these properties vested in the defendants by virtue of a sale deed dated 6-7-1932 from Kaniappan whose separate properties they were and that in any event the defendants perfected their title thereto by adverse possession. Rejecting the defence the trial Court decreed the suit.

3. On appeal against this decree and judgment of the trial Court the learned Subordinate Judge remanded the case to the trial Court for the purpose of taking full evidence in the case.

4. In the words of the learned Subordinate Judge the reasons for the remand are: 'There is no clear proof before me of the manner in which the suit properties came to be sold or the manner in which full satisfaction of the decree came to be entered. It has been mentioned to me at the Bar that the surety's son paid Rs. 12000 and got his properties released. If that is true, the entire amount secured under Ex. P4 having been paid, the B schedule properties should not have been sold and even if the sale had been held before the payment the sale should not have been confirmed. As there is lacuna in the evidence with reference to this portion of the case, in my opinion, it is better to send back the case to the trial Court for the purpose of taking full evidence on this matter'.

(5) The plaintiff who is aggrieved by this order has come up in appeal to this Court. Mr. Rama-chandra Iyer for the appellant contends in support of the appeal that the order of remand passed by the lower appellate Court is illegal as it is contraryto the provisions of Order 41 Rule 23 C. P. C. He argues the lower Court acted without jurisdiction in remanding the case without coming to the conclusion that the decision of the trial Court is wrong and that it ought to be set aside. In support of his contention he relies upon two decisions of this Court reported in 'Agneswaraswami Devastanam v. Govinda Pandithan', : (1948)2MLJ413 and 'Ariangavu Pillai v. Nallamangai Ammal', : (1950)2MLJ370 . There seems to be considerable force in the argument of Mr. Ramachandra Iyer. The power of an appellate Court to remand is contained in Order 41 Rule 23 as amended in Madras.

'Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, or where the Appellate Court in reversing or setting aside the decree under appeal considers it necessary in the interests of justice to remand the case the Appellate Court may by order remand the case and may further direct what issue or issues shall be tried in the case so remanded and shall send copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit and the evidence, if any, recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand'.

It is seen that this rule lays down the circumstances under which an appellate Court can remand a case to the trial Court. So, to justify an order of remand, the conditions specified therein should be fulfilled. It is open to the appellate Court to remand the case to the trial Court in the interests of justice only when it finds it necessary to reverse the decree for justifiable reasons.

6. In the present case the order of remand is made not because the subordinate Judge, was of opinion that the decision of the trial Court is wrong on merits and ought to be set aside and the interests of justice required that the suit should be re-heard but because it was his view that it was better to send the case back to the trial Court for the purpose of taking full evidence 'as there is lacuna to the evidence with reference to this portion of the case'. I do not think this is permissible under the provisions of Order 41 Rule 23 of the Civil Procedure Code. It may also be noted that there is no basis either in the pleadings or in evidence for the case which, the learned Judge thought required elucidation. The plea that a sale of the judgment-debtor's property in enforcing the security could not be validly held after the third party surety had deposited the amount of the security bond was deposited was not put forward In the written statement, nor was any issue raised about it, nor any evidence bearing on that question let in. No attempt seems to have been made even in the lower appellate Court to put forward that contention and substantiate it.

7. In this context, two rulings of this Court were cited by Mr. Ramachandra lyer for the appellant. It has been laid down by Horwill J. both in 'Agneswaraswami Devastanam v. Govinda Pandi-than', : (1948)2MLJ413 and 'Ariangavu Pillai v. Nallamangalammal', : (1950)2MLJ370 that the Court of appeal can remand a case to the trial Court only when it finds it necessary to set aside the decree on the material placed before it. I express my agreement with the view taken by the learned Judge in both the decisions. It follows that an order of remand made without coming to the conclusion that the decision of the trial Cout is wrong and is illegal and has to be set aside.

8. Mr. Sundara Iyer the learned counsel for the respondent maintained that an appellate Court has got inherent jurisdiction to remand a case evenapart from the provisions of Order 41 Rule 23 C. P. C. and in support of this he has referred me to a decision of a Bench of this Court reported in 'Radhakrishna Rao v. Venkat Rao', 48 Mad 713. There the question that arose for consideration was whether the order under appeal was made under Order 41 Rule 23 C. P. C., or under Section 151 C. P. C. and whether the appeal was competent. The learned Judges held that no appeal lay against that order as it was one made under Section 151 C. P. C.

9. Another decision of this Court relied upon by Mr. Sundara lyer is 'Mohammad Maracayar v. Rangaswami Naidu', 16 Mad L W 515 where Odgers J. observed that the power to remand inhered permanently in an appellate Court though it ought to be very cautiously exercised. Mr. Ramachandra Iyer has invited my attention to cases which have taken a contrary view butt it is unnecessary for me to consider this question any further having regard to the Madras amendment to Order 41 Rule 23 C. P. C. I do not think that after this amendment it could be said that there is any residuary power in the Appellate Court to remand a case apart from the provisions of Order 41 Rule 23. In my view the inherent power of the Court to remand a case is embodied in Order 41 B. 23 and that power is prescribed with certain limits namely that the Court can remand a case in the interests of Justice only when it comes to the conclusion that it is necessary to set aside the decree. It is well settled that a Court cannot exercise inherent Jurisdiction in any case for which another procedure is laid down specifically in the Code. Assuming this contention of Mr. Sundara Iyer to be correct an appellate Court cannot exercise that inherent jurisdiction arbitrarily. For the aforesaid reasons the order of the lower appellate Court remanding the suit cannot be sustained.

10. Mr. Sundaram lyer next attempted to support the order of the lower Court on the ground that the consent of the advocate for the appellant herein was obtained for the course adopted by the lower appellate Court. He maintained that even if the lower appellate Court has violated the mandatory provisions of Order 41 B. 23 still the consent of the parties would cure it as it cannot be said to be an order without jurisdiction but that at the worst it is only an illegality. In support of the contention that the order of remand though illegal can be cured by the consent of the parties he relied on the 'Manager of the Court of Wards, Kalahasti Estate v. Ramasami Reddi', 28 Mad 437. It is not necessary for me to go into this question In view of the fact that the learned Judge does not purport to act on the consent of the parties. As I have already stated the learned Judge thought, that as there was a lacuna, In the case In the Interests of justice the case should be remanded to the trial Court for the purpose of taking full evidence on the matter. In these circumstances I think the order of the lower Court remanding the case to the trial Court must be set aside. But It does not preclude the defendant-respondent herein from applying for such amendment of the written statement as he thinks necessary which will be considered by the lower appellate Court on the merits of that application. The order of the lower appellate court is set aside and A. S. No. 46 of 1948 is sent back to the lower appellate Court for disposal on the merits. Having regard to the circumstances of the case I direct each party to bear his own costs.


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