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Subhadra Sundari Choudhurani Executrix to the Estate of Ananda Chandra Choudhuri Vs. Karimulla Bepari - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in38Ind.Cas.196
AppellantSubhadra Sundari Choudhurani Executrix to the Estate of Ananda Chandra Choudhuri
RespondentKarimulla Bepari
Excerpt:
civil procedure code (act v of 1908), order xli, rule 23 - remand, order of, by appellate court, for fresh decision after fresh local investigation--decision on preliminary issue--appellate court, powers of. - .....appeal against an order of remand passed by the lower appellate court, it appears that there was a local investigation in the suit and the court of first instance held that the investigation was unsatisfactory, but, upon other evidence that court decreed the plaintiff's suit. upon appeal by the defendant, the district judge was of opinion that a fresh local investigation was necessary to be made in the case, but instead of directing such investigation himself, he remanded the case to the first court for fresh decision after a fresh investigation. as the case was not disposed of upon a priliminary point by the court of first instance, the learned judge had no power to remand the case to that court. the order of the district judge is, therefore, set aside and the case is sent back to the.....
Judgment:

1. This is an appeal against an order of remand passed by the lower Appellate Court, It appears that there was a local investigation in the suit and the Court of first instance held that the investigation was unsatisfactory, but, upon other evidence that Court decreed the plaintiff's suit. Upon appeal by the defendant, the District Judge was of opinion that a fresh local investigation was necessary to be made in the case, but instead of directing such investigation himself, he remanded the case to the first Court for fresh decision after a fresh investigation. As the case was not disposed of upon a priliminary point by the Court of first instance, the learned Judge had no power to remand the case to that Court. The order of the District Judge is, therefore, set aside and the case is sent back to the lower Appellate Court, in order that it may be restored to its file and that the appeal may be re-heard after a fresh local investigation is made.

2. The costs of this appeal will abide the result, the hearing fee being assessed at two gold mohurs.


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