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V. Venkatarama Aiyar Vs. T.V. Sundaram Aiyar and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in92Ind.Cas.1045
AppellantV. Venkatarama Aiyar
RespondentT.V. Sundaram Aiyar and ors.
Cases ReferredMuppavarajii Venkata Radhahriskna Rao v. Venthurumilli Venkatarao A.I.R.
Excerpt:
civil procedure code (act v of 1908), order xli, rule 28 - trial court, findings of on all issues--order of remand for further--evidence on same issues only--jurisdiction. - .....on those findings cannot come within the scope of order xli, rule 23, and that, therefore, no appeal lies. certain decisions of this court have been cited before us to the effect that the order of remand must be deemed to have been passed, though improperly passed, under order xli, rule 23 and that therefore an appeal lies, but no decision quoted has the effect of overruling the view we took in a similar case, muppavarajii venkata radhahriskna rao v. venthurumilli venkatarao a.i.r. 1925 mad. 229 : 48 m.l.j. 713 which we see ho reason at present to abandon. we hold, therefore, that no appeal lies. the appeal against order is dismissed. in the civil revision petition we are confined to the question whether the subordinate judge exceeded or improperly exercised his jurisdiction in the.....
Judgment:

1. It has been argued before us that no appeal lies in this case. We are clear that an order of remand in case where the Trial Court has disposed itself of all the issues and given a decree on those findings cannot come within the scope of Order XLI, Rule 23, and that, therefore, no appeal lies. Certain decisions of this Court have been cited before us to the effect that the order of remand must be deemed to have been passed, though improperly passed, under Order XLI, Rule 23 and that therefore an appeal lies, but no decision quoted has the effect of overruling the view we took in a similar case, Muppavarajii Venkata Radhahriskna Rao v. Venthurumilli Venkatarao A.I.R. 1925 Mad. 229 : 48 M.L.J. 713 which we see ho reason at present to abandon. We hold, therefore, that no appeal lies. The appeal against order is dismissed. In the civil revision petition we are confined to the question whether the Subordinate Judge exceeded or improperly exercised his jurisdiction in the order under revision. That order displays several inconsistencies and is obscure in its purport. The Subordinate Judge holds at one stage, e.g., that 3rd defendant is not a necessary party and yet remands the case retaining him on the record. Again at another stage he remands 'the whole case' while he lays down that only issues Nos. 5 and 6 are to be re-tried. He does not say wherefrom he gets a jurisdiction to remand the whole case for re-trial merely because he wishes further evidence on those issues, particularly when the Trial Court has considered those issues on the evidence which was put in before it and recorded its findings thereon. It appears to us that the Subordinate Judge's order wag made without jurisdiction and that the proper course in the circumstances was for him to direct the principal District Munsif to take the further evidence he wished and submit it to his Court, whereon he would record his own finding. We set aside the order of remand and direct that the decision of the principal District Munsif stand, and that the District Judge do call for any further evidence he requires and on its receipt decide the appeal de novo for himself. We would make it clear that the lower Appellate Court's decision that the 3rd defendant is not a necessary party falls to the ground along with the reversal of its order and is, therefore, still open for decision at the re-hearing of the appeal. The civil revision petition is allowed to this extent. There will be no order as to costs either in the civil revision petition or the appeal against order.


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