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Ramchunder Nag and ors. Vs. Kalikristo Paul - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal147
AppellantRamchunder Nag and ors.
RespondentKalikristo Paul
Excerpt:
appeal - letters patent, clause 15--remand order. - richard garth, c.j.1. we are of opinion that there is no appeal against the order which the learned judge has made in this case. he has come to no decision upon the merits, nor has he given what we consider to be a judgment within clause 15 of the letters patent. in point of fact he says: 'i cannot give a proper judgment in the case as it stands.'2. he considers that the lower appellate court has misunderstood the case and has not tried the proper issues; and, therefore, professing, as we conceive, to act under the combined operation [148] of sections 566 and 587 of the civil procedure code, he has framed certain issues, and desired the lower court to try them, and return its findings to this court; meanwhile the case remains on his own file.3. how far the learned judge had power to deal.....
Judgment:

Richard Garth, C.J.

1. We are of opinion that there is no appeal against the order which the learned Judge has made in this case. He has come to no decision upon the merits, nor has he given what we consider to be a judgment within Clause 15 of the Letters Patent. In point of fact he says: 'I cannot give a proper judgment in the case as it stands.'

2. He considers that the lower Appellate Court has misunderstood the case and has not tried the proper issues; and, therefore, professing, as we conceive, to act under the combined operation [148] of Sections 566 and 587 of the Civil Procedure Code, he has framed certain issues, and desired the lower Court to try them, and return its findings to this Court; meanwhile the case remains on his own file.

3. How far the learned Judge had power to deal in this way with Section 566 on second appeal, we are not in a position now to decide; because, in our opinion, the order which was made does not amount to a judgment within the meaning of Clause 15 of the Letters Patent and is therefore not appealable.

4. It has been suggested to us, that the lower Appellate Court will find itself in a difficulty in deciding the issues that have been sent down to be tried, and will be hampered by the observations which, have been made by the learned Judge in sending the case back. But we do not see any difficulty in the matter. Certain issues of fact have been framed for trial; and the lower Court has merely to come to an honest finding upon them, and submit that finding to this Court.

5. Another objection is, that the now appellant before us will be at a disadvantage when the case comes back to this Court; because, if the order ought not to have been made, he may still have to contend against the finding on the new issues.

6. But we do not apprehend any difficulty in that respect. As Mr. Justice Field is now seised of the case he will dispose of it alone when the findings are returned to this Court; and if the present appellant is dissatisfied with the decision at which the learned Judge arrives, he will have an appeal under the Letters Patent, and may then insist, as he does now, that the case should not have been remanded.

7. If he should prove right in this contention, the case will be decided, I presume, as if the present order had never been made. But this is a question for the future.

8. This appeal, at any rate, must be dismissed, as we are of opinion that no appeal lies; and the respondents will have their costs. This decision will govern the two analogous cases.


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