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Arthur Richard Hinde and anr. Vs. Ponnath Brayan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1883)ILR7Mad52
AppellantArthur Richard Hinde and anr.
RespondentPonnath Brayan and ors.
Excerpt:
civil procedure code, sections 565, 566, 567, 587 - appeal from appellate decree--issue of fact referred to appellate court--objection--finality of finding. - - it then came before another district judg, who came to the conclusion that there bad been a discharge of the bond......the bond on which plaintiffs sue.2. as this question had not been decided by the district judge in appeal, we remitted the issue 'was the obligation of the first defendant on the bond relied on by the plaintiffs still undischarged at the date of the institution of the suit?'3. the district judge returned a finding concurring with the finding at which the district munsif had arrived, that there had been no discharge; but as it was objected that the defendant had received no proper notice of the hearing of the trial of this issue, and it was found on inquiry that this was so, we again remitted the issue for trial. it then came before another district judg, who came to the conclusion that there bad been a discharge of the bond.4. objection was taken to this finding. when the case.....
Judgment:

Innes, J.

1. On review, we found that the French Court had not jurisdiction, and that the Mahe judgment was not binding upon the parties to it. The question, therefore, remained whether the first defendant in this suit was still under the obligation to discharge the bond on which plaintiffs sue.

2. As this question had not been decided by the District Judge in appeal, we remitted the issue 'Was the obligation of the first defendant on the bond relied on by the plaintiffs still undischarged at the date of the institution of the suit?'

3. The District Judge returned a finding concurring with the finding at which the District Munsif had arrived, that there had been no discharge; but as it was objected that the defendant had received no proper notice of the hearing of the trial of this issue, and it was found on inquiry that this was so, we again remitted the issue for trial. It then came before another District Judg, who came to the conclusion that there bad been a discharge of the bond.

4. Objection was taken to this finding. When the case was heard, Mr. Wedderburn went into the evidence, and contended that the finding of the Judge upon the evidence was erroneous and ought to be reversed.

5. Upon this Mr. Shephard objected that the finding of the Judge was a finding of fact, and that we had no power to call it in question in second appeal, unless the finding was upon a new issue framed, or new evidence taken, on which only one Court had formed an opinion.

6. Sections 566 and 567 of the Civil Procedure Code, which regulate the procedure upon the finding on an issue sent down by the Appellate Court, form part of Chapter XLI of the Code, and the provisions of this chapter are made applicable by Chapter XLII to proceedings in appeals from appellate decrees as far as may be.

7. In the present case it was found that there had been an error in procedure such as that referred to in Clause (c) of Section 584, and an issue was remitted to be tried which had been left untried. Then came the question how is the Court to proceed on the return to the issue. It is authorized to adopt the provision of Section 567 as far as may be.'

8. If these words had the wide meaning of 'as far as possible,' we think it could not be contended that we are precluded from going into the facts in the present case. But we think the meaning must be as far as is consistent with proceedings in second appeal.

9. Suppose the High Court to have had before it the questions whether instead of sending an issue it should determine the case upon the evidence already recorded under Section 565. That course would be quite possible, and to have adopted that course would not have been inconsistent with the language of Section 587 'as far as may be,' if these words are to be understood in the wide meaning of 'as far as possible.' But we think it is obvious that it cannot have been intended by the Legislature that in second appeal the High Court should be at liberty to go into all the facts of the case and come to a determination upon them when the Courts below had decided the case upon a preliminary point without coming to any determination upon the facts, and this seems to indicate that a more restricted meaning must be attached to the words 'as far as may be,' and that they should be taken to mean as far as is consistent with the principles on which second appeals are admitted and determined, which principles confine the adjudication to matters in which a question of law is involved.

10. It may be that if a new issue had been framed, or if evidence were taken, upon which one Court only had formed an opinion, the High Court would be competent to examine the facts, because the Legislature recognizes the right of the suitor to the opinion of a second Court upon the facts.

11. But that is not the case here. We are, we think, bound by the finding of the Judge, although the evidence to support that finding is by no means satisfactory. As that finding is to the effect that the debt of first defendant to Bavachi on the bond transferred to plaintiffs and on which they sue was discharged, the plaintiff's suit should, in our opinion, be dismissed and with costs.


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