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Mani Mohan Mandal Vs. Ramtaran Mandal - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in33Ind.Cas.329
AppellantMani Mohan Mandal
RespondentRamtaran Mandal
Excerpt:
civil procedure code (act v of 1908), section 107, sub-section 1, clause (b), order xli, rule 23--remand--lower appellate court, power of, concerning reversal and remand--statute, construction of. - .....of reversal and remand is limited to the position described in rule 23, order xli. and this is the general rule except under special conditions which have no application in the circumstances of this case.3. i may here point out what is obvious on a perusal of the code as a whole that the code consists (i) of that which is termed 'the body of the code' and (ii) of the rules.4. the body of the code is fundamental and is unalterable except by the legislature; the rules are concerned with details and machinery and can be more readily altered. thus it will be found that the body of the code creates jurisdiction while the rules indicate the mode in which it is to be exercised. it follows that the body of the code is expressed in more general terms, but it has to be read in conjunction with the.....
Judgment:

Lawrence Jenkins, C.J.

1. This is an appeal from a decision by the lower Appellate Court. For that decision there can be no justification unless it can be brought within the terms of Rule 23 of Order XLI. But that clearly cannot be done, for the Court of first instance did not dispose of the case on a preliminary point but on the merits after discussing the whole of the evidence that the parties, without any restriction, placed before it.

2. It has been suggested before us that Rule 23 is not exhaustive, and for that purpose we have been referred to Section 107, Sub-section (1), Clause (6), of the Code where, no doubt, it is said in general terms that an Appellate Court shall have power to remand a case. But this argument overlooks the opening words of the section, which provide that subject to such conditions and limitations as may be prescribed a Court shall have that power. If we turn to the definition clause we find that 'prescribed' means prescribed by rules, and rules' means rules and forms contained in the First Schedule or made under Section 122 or Section 125. These rules provide that in the case of a lower Appellate Court the power' of reversal and remand is limited to the position described in Rule 23, Order XLI. And this is the general rule except under special conditions which have no application in the circumstances of this case.

3. I may here point out what is obvious on a perusal of the Code as a whole that the Code consists (i) of that which is termed 'the body of the Code' and (ii) of the rules.

4. The body of the Code is fundamental and is unalterable except by the Legislature; the rules are concerned with details and machinery and can be more readily altered. Thus it will be found that the body of the Code creates jurisdiction while the rules indicate the mode in which it is to be exercised. It follows that the body of the Code is expressed in more general terms, but it has to be read in conjunction with the more particular provisions of the rules.

5. In this case it appears to us that the learned Judge clearly had no authority to reverse and remand. We must, therefore, set aside his decision and direct that the case be restored to his file and that he should proceed with the hearing of the appeal according to law. When it comes before him, it will be open to him to exercise all the powers that are vested in a Court of Appeal and in particular those mentioned in Sub-section (2) of Section 107 of the Code. What powers he should exercise in the particular circumstances of this case, it would not be right for us to indicate. But all we now do is to direct a re-hearing of the case by the lower Appellate Court.

6. Costs will abide the result.

N.R. Chatterjea, J.

7. I concur.


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