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Methuku Narasimhaiah Chetty and anr. Vs. Methuku Sivaramiah Chetty and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1947)2MLJ532
AppellantMethuku Narasimhaiah Chetty and anr.
RespondentMethuku Sivaramiah Chetty and ors.
Cases ReferredJatindranath v. Kalikista
Excerpt:
- - fakhr jahan begum which was a contribution suit like the present case, the lower appellate court gave a finding that the plaintiff was entitled to contribution but sent the case back to the lower court for determining the amount......civil procedure code. he urges firstly that the appellate order is to all intents and purposes a final decree completely adjudicating the liability of the parties in respect of all matters raised before him and secondly that as it purports to be a preliminary decree it is appealable by way of a second appeal and not as if it were an order passed under order 43, rule 1. the last contention is that in any case it is not an order of remand ' in the interests of justice ' within the meaning of order 41, rule 23. the basic contention however which underlies all these objections is that the appellate order is not a mere order which can be appealed against under order 43, rule 2, but is a decree, whether preliminary or final against which a second appeal lay and not a mere civil miscellaneous.....
Judgment:

Yaha Ali, J.

1. This appeal arises out of a suit for contribution and accounts by the plaintiffs instituted in these circumstances. The first and second defendants are the sons of first plaintiff's brother. Plaintiffs 2 to 11 are either the sons or grandsons of the first plaintiff. The third defendant is the son of the first plaintiff. The first plaintiff was the manager of the family. The first and second defendants filed O.S. No. 18 of 1934 in the District Munsiff's Court of Madanapalle on the 20th January, 1934, for partition. Two preliminary decrees are said to have been passed in that suit on the 8th July, 1936, and on the 26th February, 1941, respectively. During the trial of that suit the first plaintiff as the manager of the family claimed contribution in respect of certain items of expenditure incurred by him for family purposes. He was referred to an independent suit. In pursuance of that direction he filed O.S. No. 171 of 1941 to recover contribution from the defendants towards expenditure incurred by him in certain litigation and also certain other items. The trial Court went into the various items in respect of which contribution was claimed and after coming to conclusions with regard to the liability or otherwise of each party found that in fact the plaintiff himself on taking account was indebted to the defendants. In that view he dismissed the suit. The plaintiff appealed and before the Subordinate Judge, Chittoor, only a few points were specifically urged which were considered by the appellate Judge under three broad headings. The first group of items related to expenses incurred in the litigation between the first plaintiff and Chengamma. The amount claimed was Rs. 1,359-13-3. The second item related to expenses incurred in the litigation between Chinna Muni Reddi and the plaintiff and also the mesne profits that the first plaintiff had to pay as a result of the decree in that suit. The amount involved in this item was Rs. 1,551-2-0. The third item was a sum of Rs. 100 paid by the first plaintiff to one Thoti Muni Reddi and it is stated that the first plaintiff incurred this item of expenditure for family purposes prior to the partition. The appeal was allowed in part allowing some items to the plaintiffs and disallowing some other items. With regard to those items that were allowed in favour of the plaintiff, defendants 1 and 3 have preferred this appeal while with regard to the items disallowed against them, the plaintiffs have filed cross-objections.

2. At the outset Mr. Sampath Aiyangar for the respondents-plaintiffs has raised a preliminary objection contending that the civil miscellaneous appeal under Order 43, Rule (1)(u) is not maintainable as the order passed by the Subordinate Judge is not an order of remand within the meaning of Order 41, Rule 23, Civil Procedure Code. He urges firstly that the appellate order is to all intents and purposes a final decree completely adjudicating the liability of the parties in respect of all matters raised before him and secondly that as it purports to be a preliminary decree it is appealable by way of a second appeal and not as if it were an order passed under Order 43, Rule 1. The last contention is that in any case it is not an order of remand ' in the interests of justice ' within the meaning of Order 41, Rule 23. The basic contention however which underlies all these objections is that the appellate order is not a mere order which can be appealed against under Order 43, Rule 2, but is a decree, whether preliminary or final against which a second appeal lay and not a mere civil miscellaneous appeal. This contention appears to be sound and supported by authority.

3. The suit as it was filed was one for accounts and was valued as such for court-fees with an undertaking to pay more court-fee if a larger amount was found payable to the plaintiff. The appeal was also valued likewise as for a suit for accounts. The learned Subordinate Judge after deciding all the questions that were raised before him in detail concluded the judgment in these words:

Now these are the only points argued in appeal and the lower Court's decree will be modified as. per the findings given by me above. The case will go back to the lower Court for passing a final decree after making all adjustments as per the findings given above. In view of the fact that the parties have succeeded and lost in part in this appeal, I direct them to bear their own costs. So far as the lower Court's costs are concerned, the lower Court will pass a decree for the amount found due of the plaintiffs and direct the parties to pay and receive proportionate costs on the amount decreed and disallowed.

It is noteworthy that the learned Subordinate Judge carefully avoided using the word 'remand ' and he specifically stated that the case would go back to the trial Court for passing a final decree after making all adjustments as per the findings given by him. All questions relating to costs in all the Courts were also decided. There was therefore nothing left by the appellate Court to be done by the trial Court by way of adjudication of any point at issue Between the parties. All that remained to be done by the Court of first instance was the calculation of actual figures in accordance with the findings of the appellate Court and embodying them in what was intended by the appellate Court to be a final decree. It is thus clear that the learned appellate Judge purported to pass a preliminary decree leaving the working out of the figures and nothing more to be done in the final decree. This is made further clear by the appellate decree which is cast in the form prescribed for a decree and not in the form of an order. Mr. Bhujanga Rao's main contention is that after the Madras amendment of Rule 23 of Order 41 the appellate Court has power, in reversing or setting aside the decree if it considers necessary in the interests of justice, to remand the case and that in such cases the Court will give further directions as to the issue or issues to be tried. He argues that it is not necessary that the appeal should have been disposed of on a preliminary point to entitle the Court to order a remand. That contention is correct. Because of the view taken in Subba Goundan v. Krishnamachari (1921) 42 M.L.J. 372 : I.L.R. Mad. 449 and Radhakrishna Rao v. Venkatarao : (1924)47MLJ552 the rule was amended so as to enable appeals to be filed not only in cases where the Court exercises the power of remand under its inherent powers under Section 151, Civil Procedure Code, but also in cases where the remand has to be ordered in the interests of justice such as where a new case or a new cause of action was introduced by amendment of the pleadings in appeal or where at the appellate stage new evidence documentary or oral was allowed altering the complexion of the trial or a new party was permitted to be brought on record necessitating the raising of fresh defence. Even after the amendment, it is implicit in the rule that there should be some trial still requiring to be conducted after the remand. In answer to this contention Mr. Sampath Aiyangar has drawn attention to the definition of ' decree ' in Clause (2) of Section 2 which is in these terms:

decree means the forma) expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.

The explanation attached to that definition is as follows:

A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.

The question thus resolves itself into this. Is the order of the appellate Judge one which in substance and in essence completely disposes of the suit Now it is clear from a comparison of the judgments of both the Courts that the ambit is identical, the only difference being that the Court of first instance decided the questions involved in one way while the appellate Court decided some of those questions alone which were argued before it in another way. There is nothing left over by the appellate Court to be tried or adjudicated once again by the trial Court. It was only a question of making the necessary calculations according to the findings of the appellate Court in order to draw up a formal final decree. In Md. Sadiq Ali v. Fakhr Jahan Begum which was a contribution suit like the present case, the lower appellate Court gave a finding that the plaintiff was entitled to contribution but sent the case back to the lower Court for determining the amount. It was held relying upon two decisions of the Privy Council that the finding amounted technically to a preliminary decree and that an appeal was competent from it under Section 96. The learned Judges held that the findings of the learned Subordinate Judge were formal expression of an adjudication so far as his Court was concerned and that that expression conclusively determined that the plaintiffs had a right. They said:

The present suit is, of course, not yet completely disposed of, but all substantial and essential matters in controversy in the suit have been conclusively determined. The further proceedings that have to be taken before the suit can be completely disposed of will all be proceedings in the nature of accounts with a view finally to determine the amount of money for which a decree is in the end to be made in favour of the plaintiffs against the defendant.

The two Privy Council decisions referred to therein are Rahimbhoy Habibbhoy v. G. A. Turner and Syed Muzhar Husein v. Mst. Bodha Bibi . In the former case the decree directed the taking of accounts which, the defendant contended, ought not to be taken at all. Their Lordships said:

It is true that the decree that was made does not declare in terms the liability of the defendant, but it directs accounts to be taken which he was contending ought not to be taken an all ; and it must be held that the decree contain? within itself an assertion that, if a balance is found against the defendant on those accounts, the defendant is bound to pay it. Therefore the form of the decree is exactly as if it affirmed the liability of the defendant to pay something on each one of these claims, if only the arithmetical result of the account should be worked out against him. Now that question of liability was the sole question in dispute at the hearing o 'the cause, and it is the cardinal point of the suit. The arithmetical result is only a consequence of the liability. The real question in issue was the liability, and that has been determined by this decree against the defendant in such a way that in this suit it is final. The Court can never go back again upon this decree so as to say that, though the result of the account may be against the defendant, still the defendant is not liable to pay anything. That is finally determined against him, and therefore in their Lordships' view the decree is a final one within the meaning of Section 595 of the Code.

Lord Hobhouse re-affirmed this decision in Syed Muzhar Husein v. Mst. Bodha Bibi . Although there is a large number of cases bearing upon this point it would be sufficient to refer to Jatindranath v. Kalikista : AIR1933Cal416 where it was held that where the appellate Court remands the case to the Court of first instance giving some directions in its judgment as to the way in which the assessment of rent in kind should be made, it has really passed a decree because it is not an order of pure remand but contained a determination of the principle on which the assessment was to be made. The present case is a stronger one as the learned Subordinate Judge did not employ the word ' remand ' but carefully avoided it stating that he was sending it back for the purpose of passing a final decree in the light of the findings given by him. The rule to be applied to such cases is as laid down by the Judicial Committee that after the liability has been decided, the working of the arithmetical result is only a consequence of the liability and that such a decree determining the liability is a decree within the meaning of Section 2(2) of the Civil Procedure Code and as such appealable under Section 96, Civil Procedure Code and not under Order 43, Rule 2. The preliminary objection is upheld.

3. At this stage Mr. A. Bhujanga Rao applies by C.M.P. No. 4576 of 1947 for conversion of this C. M.A. into a second appeal. I have rejected the application taking into consideration all the circumstances of the case. (Vide Order on C.M.P. No. 4576 of 1947.)

4. The C.M.A. is dismissed with costs. The memorandum of cross-objections is not pressed and is dismissed. No order as to costs.


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