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Haripada Saha and ors. Vs. Debnath Mandal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1928Cal749,110Ind.Cas.427
AppellantHaripada Saha and ors.
RespondentDebnath Mandal and ors.
Excerpt:
- .....in the circumstances stated by the subordinate judge issued a fresh commission for the purpose of local investigation. there is, however, one difficulty in maintaining the order as it has been made, and that is this, the munsif decided all the issues including the question of limitation. the subordinate judge does not say anything with regard to the question of limitation. he set aside the whole-judgment simply because of the unsatisfactory way in which the trial court dealt with the matter of local investigation. it appears to us that he was wrong in setting aside the whole judgment including the finding with regard to the question of limitation upon that ground.2. we, therefore, set aside the order of the subordinate judge remanding the case after setting aside the judgment of the.....
Judgment:

1. On first reading the judgment it seemed that the Subordinate Judge passed his order under the inherent jurisdiction of the Court to make an order of remand when the trial in the first Court is altogether misconceived The trial Court after rejecting the report of the commissioner ought to have in the circumstances stated by the Subordinate Judge issued a fresh commission for the purpose of local investigation. There is, however, one difficulty in maintaining the order as it has been made, and that is this, the Munsif decided all the issues including the question of limitation. The Subordinate Judge does not say anything with regard to the question of limitation. He set aside the whole-judgment simply because of the unsatisfactory way in which the trial Court dealt with the matter of local investigation. It appears to us that he was wrong in setting aside the whole judgment including the finding with regard to the question of limitation upon that ground.

2. We, therefore, set aside the order of the Subordinate Judge remanding the case after setting aside the judgment of the Munsif and in lieu of the order made by the Subordinate Judge we direct that the appeal be sent back to him for decision. He may make an order for local investigation himself or direct the trial Court to appoint a commissioner for making a local investigation and he will proceed under Rules 27, 28 and 29 of Order 41. After the local investigation is made and any evidence that the Subordinate Judge desires to be taken is taken the Subordinate Judge will decide the appeal on all the questions arising in the suit himself.

3. The costs will abide the final result. We assess the hearing fee at two gold mohurs.


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