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K.V. Sundara Ramaiyer and ors. Vs. Sathianathan Alias Vengappa Chetty and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in102Ind.Cas.28
AppellantK.V. Sundara Ramaiyer and ors.
RespondentSathianathan Alias Vengappa Chetty and ors.
Cases ReferredBalla Mallayya v. Peddi Veerayya
Excerpt:
civil procedure code, (act v of 1908), sections 115 and 151, order xli, rule 23 - remand order, not on preliminary point--appeal, whether lies. - .....code of civil procedure though, the district judge refers to this in his judgment. it is a remand under section 151 of the civil procedure code as has been held recently in balla mallayya v. peddi veerayya : air1927mad335 and other cases.2. the district munsif did not decide the suit on any preliminary point but on the whole of the issues raised; after an ex parte decree is set aside and the suit remanded for trial. sadhu krishna aiyar v. kuppan ayyangar 20 m.p 54 : 1 m.l.t. 268 : 16 m.l.j. 479 is authority for the proposition that the remand is not under order xli rule 23. the learned vakil for the appellant desires to argue this on the footing of a civil revision petition. this cannot be done. cf., balla mallayya v. peddi veerayya : air1927mad335 3. the appeal is dismissed with.....
Judgment:

1. The preliminary point that no appeal lies must prevail. There was no remand here under Order XLI, Rule 23 of the Code of Civil Procedure though, the District Judge refers to this in his judgment. It is a remand under Section 151 of the Civil Procedure Code as has been held recently in Balla Mallayya v. Peddi Veerayya : AIR1927Mad335 and other cases.

2. The District Munsif did not decide the suit on any preliminary point but on the whole of the issues raised; after an ex parte decree is set aside and the suit remanded for trial. Sadhu Krishna Aiyar v. Kuppan Ayyangar 20 M.P 54 : 1 M.L.T. 268 : 16 M.L.J. 479 is authority for the proposition that the remand is not under Order XLI Rule 23. The learned Vakil for the appellant desires to argue this on the footing of a Civil Revision Petition. This cannot be done. Cf., Balla Mallayya v. Peddi Veerayya : AIR1927Mad335

3. The appeal is dismissed with costs of 3rd defendant. The memorandum of objections is not pressed and must be dismissed with costs.


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