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Sarada Sundari Dassya Vs. Gangahari Saha - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1919)ILR46Cal738
AppellantSarada Sundari Dassya
RespondentGangahari Saha
Cases ReferredGeneral v. Simpson
Excerpt:
remand - remand of whole case on the merits--jurisdiction--civil procedure code (act v of 1908), order xli, rule 33--rules of supreme court of england, 1883, order lviii, rule 4--practice. - .....on the merits. that was what mr. justice newbould stated he intended to do. that matter remained unappealed against. it was just as much as an order of any other court. an order unappealed against must be given full effect to and this order being unappealed against, i think, ought to be given full effect to. in that view of the case, the decision of the learned judge which reversed rightly or wrongly the decision of the lower appellate court and remanded the case for trial on the merits, must be taken to be final. at the same time i think that this case is covered by order xli, rule 33 of the civil procedure code. the observations of lord justice stirling in the case of attorney-general v. simpson [1901] 2 ch. 671, 720 seem to show that an order under order xli, rule 33, which is.....
Judgment:

Fletcher, J.

1. The matter raised in the present appeal is this: The plaintiff brought a suit to recover certain amounts that had been awarded to her by some arbitrators on the footing that her deceased husband had an interest in a business. The case went to trial and the present plaintiff succeeded in the first Court to a very considerable extent though not to the whole of the claims. Both parties then appealed to the District Judge and the District Judge allowed the appeal of the defendant to a certain extent and disallowed the appeal of the plaintiff. Thereupon, the plaintiff appealed to this Court and the case came on for hearing before Mr. Justice Newbould, and what Mr. Justice Newbould did was this: He reversed the decision of the lower Appellate Court and remanded the case for determination on the merits. That was what Mr. Justice Newbould stated he intended to do. That matter remained unappealed against. It was just as much as an order of any other Court. An order unappealed against must be given full effect to and this order being unappealed against, I think, ought to be given full effect to. In that view of the case, the decision of the learned Judge which reversed rightly or wrongly the decision of the lower Appellate Court and remanded the case for trial on the merits, must be taken to be final. At the same time I think that this case is covered by Order XLI, Rule 33 of the Civil Procedure Code. The observations of Lord Justice Stirling in the case of Attorney-General v. Simpson [1901] 2 Ch. 671, 720 seem to show that an order under Order XLI, Rule 33, which is substantially in the same terms as the English Order LVIII, Rule 4, would cover a case like the present. In that view, Mr. Justice Newbould had ample jurisdiction to make the order remanding the whole case for determination on the merits. Whether he had or not, I think the present appeal must be dismissed with costs.

Walmsley J.

2. I agree.


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