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Haradeb Das Agarwalla Vs. Ananda Sheik and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in30Ind.Cas.894
AppellantHaradeb Das Agarwalla
RespondentAnanda Sheik and anr.
Cases ReferredChinnatambi v. Chinnana
Excerpt:
civil procedure code (act v of 1908), section 102, order xli, rule 23, order xliii, rule 1(u) - remand, appeal from order of. - .....changed by the code of 1908. under the code of 1832, an appeal was allowed against an order of remand by clause 28 of section 588, and it was ruled in a long series of decisions that this right of appeal was not restricted by section 586: kirte v. ramjan 10 c. 523 : 5 shome l.r. 159; mathura nath ghose v. nobin chandra kundu 24 c. 774 : 1 c.w.n. 674; agandh mahto v. khajah aliullah 11 c.w.n. 862; collector of bijnor v. jafar ali khan 3 a. 18; jhanday lal v. sarman lal 21 a. 291 : a.w.n. (1899) 68; mahadev narsingh v. ragho keshav 7 b. 292; chinnatambi v. chinnana 19 m. 391. now an appeal does not lie against order of remand in a suit of a nature cognizable by a court of small causes and valued at less than rs. 500, because a second appeal is not allowed against the decree of the.....
Judgment:

1. This appeal is clearly incompetent. It is directed against an order of remand, made under Rule 23 of Order XLI of the Code, in a suit of a nature cognizable by a Court of Small Causes and valued at less than Rs. 500. If a decree had been made in the suit by the lower Appellate Court, that decree would have been non appealable under Section 102. Consequently, no appeal lies against the order of remand, for Clause (u) of Rule 1 of Order XLIII allows an appeal against an order under Rule 23 of Order XLI remanding a case, only where an appeal would lie from the decree of the Appellate Court. It may be observed that the pre-existing law in this respect has been changed by the Code of 1908. Under the Code of 1832, an appeal was allowed against an order of remand by Clause 28 of Section 588, and it was ruled in a long series of decisions that this right of appeal was not restricted by Section 586: Kirte v. Ramjan 10 C. 523 : 5 Shome L.R. 159; Mathura Nath Ghose v. Nobin Chandra Kundu 24 C. 774 : 1 C.W.N. 674; Agandh Mahto v. Khajah Aliullah 11 C.W.N. 862; Collector of Bijnor v. Jafar Ali Khan 3 A. 18; Jhanday Lal v. Sarman Lal 21 A. 291 : A.W.N. (1899) 68; Mahadev Narsingh v. Ragho Keshav 7 B. 292; Chinnatambi v. Chinnana 19 M. 391. Now an appeal does not lie against order of remand in a suit of a nature cognizable by a Court of Small Causes and valued at less than Rs. 500, because a second appeal is not allowed against the decree of the lower Appellate Court in such a suit.

2. The result is that this appeal is dismissed.


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