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Malayandi Goundan and anr. Vs. Bomman Poosari and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in71Ind.Cas.204
AppellantMalayandi Goundan and anr.
RespondentBomman Poosari and ors.
Cases ReferredMalayath Veetil Raman v. Krishnan Namhudripad
Excerpt:
civil procedure code (act v of 1908), section 151, order xli, rules 23, 24 - first court's finding on fill issues--power of appellate court to remand whole suit for re-trial after framing additional issues--appeal. - - 2. in a case like the present where the first court has framed a number of issues, arising out of the points on which the parties joined issue in their pleadings and has decided every one of them in its judgment, it is not open to an appellate court to remand the case under rule 23 of order. 922. granting that the appeal ,could not well be disposed of in the manner provided by order xli rule......not refer to section 151 in his judgment, we may assume that he was acting under rule 23 of order xli and not under section 151.7. if he purported to act under a power that he possessed but made a wrong order in the exercise of that power, an appeal will lie. in the present case, the appellant has also filed a revision petition, so that we have undoubtedly power to make the order as set out above.
Judgment:

1. The procedure of the Subordinate Judge in remanding the whole suit for a re-trial after framing 4 additional issues, is a procedure not provided by the Code of Civil Procedure and is furthermore one not conducive to the expeditious settlement of the disputes between the parties.

2. In a case like the present where the first Court has framed a number of issues, arising out of the points on which the parties joined issue in their pleadings and has decided every one of them in its judgment, it is not open to an Appellate Court to remand the case under Rule 23 of Order. XLI as though the suit had been decided on a preliminary point vide Sultan Beg v. Chunilal Maturam 46 Ind. Cas. 922. Granting that the appeal ,could not well be disposed of in the manner provided by Order XLI Rule. 24, owing to the question of the 6th defendant's hereditary power's not having been considered at the trial, the proper course-for the Appellate Court was to frame the essential issues and to call upon the District Munsif to return findings on them, after allowing each side to adduce additional evidence.

3. We set aside the order of remand and direct that the case be remitted to the Subordinate Court in order that the appeal may be further dealt with and disposed of according to law.

4. The costs of this appeal will abide the result.

5. A preliminary objection was taken to the admissibility of this appeal on the ground that Order XLIII, Rule 1(a) only provides for an appeal in a case where the First Court has disposed of thee case on a preliminary point, and as there was no such disposal here, the Subordinate Judge must have acted in the exercise of his inherent powers under Section 151 of the Code of Civil Procedure. In answer to this objection it is sufficient to refer to the observations of the learned Chief Justice in his judgment in Full Bench case in Malayath Veetil Raman v. Krishnan Namhudripad 69 Ind. Cas. 828 : M.L.J. 354 : 31 M.L.T. 208 : 16 L.W. 425 : (1922) M.W.N. 589 where lie points out that where the Code expressly limits the power of a Court, there cannot co-exist an inherent power in that Court to disregard that limitation.

6. As the Subordinate Judge does not refer to Section 151 in his judgment, we may assume that he was acting under Rule 23 of Order XLI and not under Section 151.

7. If he purported to act under a power that he possessed but made a wrong order in the exercise of that power, an appeal will lie. In the present case, the appellant has also filed a revision petition, so that we have undoubtedly power to make the order as set out above.


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