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BepIn Behary Dey and ors. Vs. the Midnapore Zemindary Co., Ltd. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in110Ind.Cas.444
AppellantBepIn Behary Dey and ors.
RespondentThe Midnapore Zemindary Co., Ltd.
Excerpt:
civil procedure code (act v of 1908), order xli, rules 23, 25 - order of remand, legality of. - .....dismissed.applications have been presented on behalf of the appellants to the effect that the subordinate judge's order remanding the oabes to the trial court is without jurisdiction. the suits were dismissed by the muasif. on appeal by the plaintiff company the subordinate judge decided the issues which were decided against the plaintiffs in their favour and after having done so be made the following order, that these suits be remanded to the lower court for determining the amount which the plaintiff will get as compensation for the value of the trees cut down and appropriated by the defendants, aud that the parties be permitted to adduce evidence for determining the amount of compensation to which the plaintiff will be entitled. now the trial court omitted to try the issue as.....
Judgment:

In all these three appeals there does not seem to be a second appeal. The appeals are, therefore, dismissed.

Applications have been presented on behalf of the appellants to the effect that the Subordinate Judge's order remanding the oaBes to the trial Court is without jurisdiction. The suits were dismissed by the Muasif. On appeal by the plaintiff Company the Subordinate Judge decided the issues which were decided against the plaintiffs in their favour and after having done so be made the following order, that these suits be remanded to the lower Court for determining the amount which the plaintiff will get as compensation for the value of the trees cut down and appropriated by the defendants, aud that the parties be permitted to adduce evidence for determining the amount of compensation to which the plaintiff will be entitled. Now the trial Court omitted to try the issue as regards the amount of compensation. It is, however, said on behalf of the petitioners that the evidence on the record was sufficient. From the decision of the Appellate Court it appears that the Subordinate Judge was of opinion that the parties should be allowed to adduce further evidence on the question of compensation. The lower Appellate Court ought to have made an order under Rule 25 cf Order XLI, Civil Procedure Code, keeping the appeals on his own file and sending doM a the issue with regard to compensation for trial by the trial Court. This is an error of procedure which the petitioners here desii e to be corrected.

We, therefore, set aside the order of the Subordinate Judge remanding all the cases for the determination of the amount of compensation to the trial Court. The Subordinate Judge will only send down the necessary issue and make an order under Rule 25 of Order XLI, Civil Procedure Code, and decide the question himself as provided in that rule.

We make no order as to costs in these applications.


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