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Nurul Guni, One of the Heirs of Late Golam Akbar Vs. A.S.A. Kazamaini Mutualli - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal323,66Ind.Cas.922
AppellantNurul Guni, One of the Heirs of Late Golam Akbar
RespondentA.S.A. Kazamaini Mutualli
Excerpt:
civil procedure code (act v of 1908, order xli, rules 23, 24, 25 - suit decided on merits--appellate court, whether can remand under rule 23-procedure. - .....11th april 1921. we refrain at this stage from dealing with the question of law discussed by the learned judge in his judgment. it is sufficient now to gay that we cannot resist the contention urged for the appellant?, that the trial court having decided the suit on the merits, it was not open to the learned judge lo remand the case under rule 23, of order xli, although the suit had been decided on a preliminary point. the learned judge should have taken the course indicated in rule 24 or the course indicated in rule 25.2. we may explain that we do not deal with the question discussed by the learned judge because it is unnecessary at the present stage to do so, and at a later stage when the outstanding issues have been decided it may still be unnecessary to deal with that question.3......
Judgment:

1. This appeal is from an order of remand dated 11th April 1921. We refrain at this stage from dealing with the question of law discussed by the learned Judge in his judgment. It is sufficient now to gay that we cannot resist the contention urged for the appellant?, that the Trial Court having decided the suit on the merits, it was not open to the learned Judge lo remand the case under Rule 23, of Order XLI, although the suit had been decided on a preliminary point. The learned Judge should have taken the course indicated in Rule 24 or the course indicated in Rule 25.

2. We may explain that we do not deal with the question discussed by the learned Judge because it is unnecessary at the present stage to do so, and at a later stage when the outstanding issues have been decided it may still be unnecessary to deal with that question.

3. We may farther say that orders of remand made by lower Appellate Courts in cases which do not fall within Rule 23 of Order XLI are likely to lead to difficulty and unnecessary dissuasion in view of the provision contained in Clause (2) of Section 105 of the Code.

4. We set aside the order of remand and direct that the case be remitted to the lower Appellate Court in order that the appeal thereto may be further dealt with and disposed of according to law, costs of this appeal to abide the result, hearing fee on gold mohur.


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