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Nanduru Sobhanadracharyulu and ors. Vs. Nanduru Venkata Narasimhacharyulu - Court Judgment

LegalCrystal Citation
Subject Civil
CourtChennai
Decided On
Reported inAIR1928Mad1062; 113Ind.Cas.552
AppellantNanduru Sobhanadracharyulu and ors.
RespondentNanduru Venkata Narasimhacharyulu
Cases ReferredRaman Nair v. Krishnan Nambudripad A.I.
Excerpt:
.....and 2 in the case really dealt with the rights of the parties and it would have been better if the district judge had simply called for a finding as to the amount to he arrived at on a calculation of the quantity of the produce and its price. 4. in cases like this there is ample power given under the code to call for a finding when the lower court by reason of the fact of its deciding certain issues against the plaintiff did not go into the other issues in the case or gave no finding as to the remaining issues under the impression that it is unnecessary to do so. 505. i do not think that sitting as a bench it is open to us to say that the decision is wrong though we may point out that the order of remand need not have been made, when a mere calling for finding would have satisfied the..........is ordered that the decree of the lower court be and the same hereby is sot aside, and the suit remanded to the lower court, that the deputy collector of nuzvid division do restore the suit to its original number in the register of summary suits and proceed to dispose of it according to law,and then he makes the usual order as to costs.3. against the decision of the district judge this second appeal has been filed. a preliminary objection has been taken that no second appeal lies against the order of remand, as section 192, estates land act, does not permit an appeal under the civil procedure code. this has been decided in a number of cases: see krishnaswamy ayyar v. vaithilinga thambiran 12 ind.cas. 146 and vilvanatha mudaliar v. mannar naidu [1914] 1 m.l.w. 667. it is, however,.....
Judgment:

Kumaraswami Sastri, J.

1. This second appeal arises out of a suit for rent filed under Section 77, Estates Land Act. The Deputy Collector decided issues 1 and 2, viz.:

(1) whether the plaintiff is entitled to a share of wet crop raised on the suit land and

(2) whether the plaintiff is entitled to recover rent for the use of water by the defendants from the tank which is the irrigation source for the suit land,

against the plaintiff but passed a decree in his favour for Rs. 10 which was admitted, with interest at 6 per cent per annum, and dismissed the rest of his claim.

2. On appeal the District Judge decided issues 1 and 2 in favour of the appellant and remanded the suit for disposal as regards the amount due. The order of the District Judge was in these terms:

It is ordered that the decree of the lower Court be and the same hereby is sot aside, and the suit remanded to the lower Court, that the Deputy Collector of Nuzvid division do restore the suit to its original number in the register of Summary Suits and proceed to dispose of it according to law,

and then he makes the usual order as to costs.

3. Against the decision of the District Judge this second appeal has been filed. A preliminary objection has been taken that no second appeal lies against the order of remand, as Section 192, Estates Land Act, does not permit an appeal under the Civil Procedure Code. This has been decided in a number of cases: see Krishnaswamy Ayyar v. Vaithilinga Thambiran 12 Ind.Cas. 146 and Vilvanatha Mudaliar v. Mannar Naidu [1914] 1 M.L.W. 667. It is, however, argued by the vakil for the appellant that the order of remand was improperly drawn up and in as much as the District Judge found issues 1 and 2 in favour of the appellant and declared also the basis on which the rent was to be collected all that remained to be done was that the amount alone should be determined. That being so, it was in effect a preliminary decree within the meaning of the Civil Procedure Code. He also argued that it is treated as a preliminary decree then an appeal would lie to this Court;. He referred to a decision of this Court in Subbee Goundan v. Krishnamachari A.I.R. 1922 Mad. 112 and Channalswami v. Gangadharappa [1915] 39 Bom. 339 to support the view that if the order was wrongly drawn up we can treat the same as if it was a preliminary decree and give the appellant adequate relief in second appeal. The. suit is a suit for rent for the use of water for the reasons set out in the plaint and for a portion of the crops raised by the use of such water. The defence raised was that the plaintiff had no right to recover any share of the produce and that they were entitled to use the water of the tank for raising wet cultivation and that the plaintiff was not entitled to any rent for the use of the water. The issues 1 and 2 in the case really dealt with the rights of the parties and it would have been better if the District Judge had simply called for a finding as to the amount to he arrived at on a calculation of the quantity of the produce and its price. Instead of so doing, the District Judge reversed and remanded the whole case for disposal.

4. In cases like this there is ample power given under the Code to call for a finding when the lower Court by reason of the fact of its deciding certain issues against the plaintiff did not go into the other issues in the case or gave no finding as to the remaining issues under the impression that it is unnecessary to do so. We think that it would save time and expense if the Judge had called for a finding on the remaining issues in the case and then passed a decree himself. In this case the party aggrieved by the lower Court's decree will have to go to the District Judge again on appeal, the findings on issues 1 and 2 will be res judicata and he will then have to come to. the High Court by way of second appeal. But the question before us is whether we should treat the order of remand as a preliminary decree treat this second appeal as an appeal from the preliminary decree and proceed to decide the case. If the District Judge had acted without jurisdiction or if he had acted with any material irregularity, then we might interfere with his order in revision. But having regard to the decision of the Full Bench of this Court in Raman Nair v. Krishna Nambudripad A.I.R. 1922 Mad. 505, the question is whether we can say that the District Judge has acted without jurisdiction in having remanded the case. The word preliminary point ' has received a wide interpretation in Raman Nair v. Krishnan Nambudripad A.I.R. 1922 Mad. 505. I do not think that sitting as a Bench it is open to us to say that the decision is wrong though we may point out that the order of remand need not have been made, when a mere calling for finding would have satisfied the ends of justice. We do not think that having regard to the facts of this case we should interfere with the order treating it as though it were a preliminary decree and this second appeal as an appeal from such a preliminary decree. The appellant has a remedy though it may cause expense and probably delay. He has got the right of appeal from the decision of the Deputy Collector to the District Judge and if he is still aggrieved he has then a right of appeal to this Court. In those circumstances, the second appeal is dismissed with costs.

Reilly, J.

5. I agree that on the wide definition of ' preliminary point ' in Rule 23, Order 41, Civil P.C., laid down by the Full Bench in Raman Nair v. Krishnan Nambudripad A.I.R 1922 Mad. 505, the findings of the Deputy Collector on issues 1 and 2 of the suit, on which he dismissed the plaintiff's claim, must be regarded as findings on preliminary points within the meaning of that rule. That being so it was open to the District Judge to remand the suit under that rule, though I agree that in this particular case it would have bean more appropriate to have called for findings on the remaining issues. That would have been to the real convenience of all parties, and it is probable that in the end it would have saved the time of the Courts. But, as the learned District Judge chose to adopt the course he did and that was within his powers under Rule 23, Order 41, I agree that we must uphold the preliminary objection, because such an order of remand is not liable to appeal, Section 192, Estates Land Act excluding appeals in such cases. The appeals therefore, must be dismissed with costs. I agree also that in the circumstances this is not a case in which we need or should interfere in revision.


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