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Jammalamadaku Subbalakshmamma and anr. Vs. Jammala Venkatarayadu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in2Ind.Cas.525a
AppellantJammalamadaku Subbalakshmamma and anr.
RespondentJammala Venkatarayadu and ors.
Cases Referred and Balvant Ramachandra Natu v. The Secretary of State
Excerpt:
civil procedure code (act xiv of 1882), sections 662, 591 - 'decree' as used in section 591, meaning of--order of remand by appellate court--revised decree by first court pursuant to order of remand--appeal--whether appellate court can reverse its own order of remand--change of personnel in court. - .....then brought a fresh suit for possession. the munsif held his claim was res judicata. the district judge (mr. venugopala chetty) held it was not and remanded the case for disposal on the merits. the defendant did not appeal against this order. the munsif then gave a decree for possession. the defendant appealed against the decree. mr. venugopala chetty had been succeeded as district judge by mr. rice. mr. rice took the view that the plaintiff's claim for possession was res judicata. he held that the order of remand was wrong, allowed the appeal and dismissed the suit.2. we are unable to agree with the district judge that it was open to him to review the order of remand which had been made by mr. venugopala chetty. the question of law is not affected by the fact that mr. veuugopala chetty.....
Judgment:

1. The facts' which gave rise to this appeal are these: The plaintiffs brought a suit for specific performance of a contract of sale of land and for possession of the land. The District Munsif gave him a decree for specific performance but dismissed his claim for possession. This decree was affirmed by Subordinate Judge. The plaintiff then brought a fresh suit for possession. The Munsif held his claim was res judicata. The District Judge (Mr. Venugopala Chetty) held it was not and remanded the case for disposal on the merits. The defendant did not appeal against this order. The Munsif then gave a decree for possession. The defendant appealed against the decree. Mr. Venugopala Chetty had been succeeded as District Judge by Mr. Rice. Mr. Rice took the view that the plaintiff's claim for possession was res judicata. He held that the order of remand was wrong, allowed the appeal and dismissed the suit.

2. We are unable to agree with the District Judge that it was open to him to review the order of remand which had been made by Mr. Venugopala Chetty. The question of law is not affected by the fact that Mr. Veuugopala Chetty had been succeeded by Mr. Rice. If the defendant is right it would have been open to Mr. Venugopala Chetty on the appeal against the decree for possession given by the Munsif to the plaintiff to review his own order.

3. The question is, it seems to us, on the meaning of the word decree' in Section 591 of the Civil Procedure Code; we think, it should be construed as meaning a decree passed by the Court which made the order which is alleged to be erroneous, defective or irregular. If the word decree' is to be construed quite generally as the defendant has contended it should be, the effect would be to give a right of review which is not conferred in express terms and to cause great inconvenience in practice. The construction which we adopt is supported by authority. See Suraj Bin v. Chattar 3 A.k 755; Luleet Pandey v. Byjnath Singh 14 W.R. 285; Kharag Prasad Bhagat v. Durdhari Rai 14 A.k 348; Brojo Soondur Gossamee v. Juggut Chundur Bey 21 W.R. 199 and Balvant Ramachandra Natu v. The Secretary of State 32 B.k 432.

4. It was contended that it was open to us in second appeal to go into the question as to whether the remand order made by Mr. Venugopala Chetty was right. In our opinion, Section 591 of the Civil Procedure Code does not empower us to do this.

5. We must set aside the decree of the lower appellate Court and remand the case for disposal on the merits. Costs will abide the event.


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