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Suppiah Nadar Vs. T.S.M. Muthiah Pillai and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in112Ind.Cas.710
AppellantSuppiah Nadar
RespondentT.S.M. Muthiah Pillai and anr.
Cases Referred and Karupanna Pillai v. Ethumalai Pillai
Excerpt:
civil procedure code (act v of 1908), section 115, order xli, rule 23 - decision by trial court on all issues--fresh issue raised by appellate court--order of remand, whether appealable--trial on issues not raised--material irregularity--revision--interference. - .....munsif found the discharge proved and dismissed the suit. on appeal taking the view that the suit note was an escrow and not satisfied that the issues framed by the district munsif arose on the pleadings, the subordinate judge framed two additional issues, namely, whether the promissory note was executed subject to the condition that no obligation was to arise under it unless and until the defendants failed to supply the goods for the value of the money lent to samankatha nadan, and secondly, if so, whether the defendants committed default in not supplying the goods as above; and he remanded the suit for fresh disposal. against this order the present appeal is filed.2. respondents' vakil reported before us no instructions but he put before us certain technical objections to the.....
Judgment:

1. This is an appeal against an order of remand. The original suit was to recover money due on a promissory note executed by the 1st defendant to the plaintiff for purposes of trade conducted by 1st and 2nd defendants. The defence was a plea of discharge by supply of goods, the promissory note being merely a voucher for the amount received for the supply of these goods. The goods were supplied to one Samankatha Nadan and the defendant pleaded also that this man was a benamidar for the plaintiff. On these two issues the suit went to trial. The District Munsif found the discharge proved and dismissed the suit. On appeal taking the view that the suit note was an escrow and not satisfied that the issues framed by the District Munsif arose on the pleadings, the Subordinate Judge framed two additional issues, namely, whether the promissory note was executed subject to the condition that no obligation was to arise under it unless and until the defendants failed to supply the goods for the value of the money lent to Samankatha Nadan, and secondly, if so, whether the defendants committed default in not supplying the goods as above; and he remanded the suit for fresh disposal. Against this order the present appeal is filed.

2. Respondents' Vakil reported before us no instructions but he put before us certain technical objections to the hearing of the appeal contending that no appeal lies. We think that this contention must be upheld. It is difficult to hold that this disposal by the District Munsif was a disposal on a preliminary point. Therefore, no appeal lies. No doubt, rulings of this Court might be cited on which the appeal might be maintained: See Munusami Naicken v. Munusami Naicken 76 Ind. Cas. 1041 : 16 L.W. 979 : (1923) M.W.N. 1 : A.I.R. 1923 Mad. 227, and Malayandi Gomidan v. Bomman Poosari 71 Ind. Cas. 204 : 17 L.W. 159 : A.I.R. 1923 Mad. 331 but the view to which we incline, namely, that no appeal lies when the District Munsif has disposed of all the issues before him and, therefore, the disposal is not on a preliminary point, has been upheld by a Bench of this Court to which one of us was a party in Venkatarama Aiyar v. Sundaram Aiyar 92 Ind. Cas. 1045 : (1926) M.W.N. 48 and in Muppavaraju Venkata Radhakrishna Rao v. Venthurumilli Venkatrao : (1924)47MLJ552 The appeal, therefore, as an appeal will have to be dismissed.

3. We are asked to treat the appeal as a Civil Revision Petition in which case this Court will not interfere unless the lower Court has acted without jurisdiction or has exercised its jurisdiction with material irregularity. Now where a Court ordering remand has in the view of the Revisional Court properly exercised its jurisdiction, the Revisional Court will not only not interfere but also has no power under Section 115, Civil Procedure Code, to interfere: see Balla Mallayya v. Peddi Veerayya : AIR1927Mad335 and Karupanna Pillai v. Ethumalai Pillai : AIR1927Mad859 . In the former case, however, it was explained and rightly that each case must be decided on its own facts. But if the lower Appellate Court exercised its jurisdiction with material irregularity there can be no question but that this Court baa power to interfere under Section 115, Civil Procedure Code, and, therefore, that is the point now to be considered. The view of the lower Appellate Court that the pleadings raise a plea of escrow seems to us to have no warrant. The plea is the written statement is that Samankatha Nadan through the plaintiff paid Rs. 600 for the price of the dye goods and that since the goods could not be dispatched for want of waggons, a promissory note was executed as security for the amount advanced. There is here no escrow, the essence of which is the postponement of the operation of a contract. There is no suggestion in the defence plea that the operation of the contract was to be postponed. The Subordinate Judge, therefore, has framed issues and called for trial on points which were never in issue between the parties. A trial on such lines is not merely useless, but is an improper exercise of jurisdiction. We must hold, therefore, that the lower Appellate Court has exercised its jurisdiction with material irregularity and this Court has the power to interfere in revision, We, therefore, set aside the order of remand and direct the lower Appellate Court to dispose of the appeal on the issues and materials already before it. We make no order as to costs.


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