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Mansurali Sarkar Vs. Jamiran Bewa and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal976,95Ind.Cas.203
AppellantMansurali Sarkar
RespondentJamiran Bewa and ors.
Excerpt:
civil procedure code (act v of 1908), order xli, rule 25 -appeal--finding required on issue--procedure. - .....in the present case. if the learned subordinate judge thought it necessary that an issue should be framed and decided he might have proceeded under order xli, rule 25 and framed the necessary issue and referred it for trial to the lower court. the procedure adopted by the lower appellate court is erroneous and the order must be set aside, if the subordinate judge had found it necessary that a particular issue should be framed and tried he might have proceeded under the provisions of order xli, rule 25, already referred to. in any case he ougut to have kept the appeal on his file and decided it finally himself.2. the order of the subordinate judge is, therefore, set aside and the appeal sent back to him for re-hearing according to law. costs of this appeal will abide the result.cuming,.....
Judgment:

Ghose, J.

1. It is very much to be regretted that the lower Appellate Court has not followed the provisions contained in Order XLI as regards orders for remand. This question was decided by this Court long ago. If the lower Courts were careful in acting according to the provisions of the case as interpreted frequently by this Court appeals against orders of remand would have been fewer than what they are now. In this case the Trial Court decided all the questions raised before it on the merits and passed a decree in accordance with the findings. The defendant appealed to the lower Appellate Court and the Subordinate Judge sets aside the judgment of the Trial Court and sends back the case to that Court for deciding it by framing an issue which the Subordinate Judge considers necessary for the decision of the case. This right of reversing a decision and remanding a case is confined under Order XLI, Rule 23, C.P.C. to particular circumstances which do not occur in the present case. If the learned Subordinate Judge thought it necessary that an issue should be framed and decided he might have proceeded under Order XLI, Rule 25 and framed the necessary issue and referred it for trial to the lower Court. The procedure adopted by the lower Appellate Court is erroneous and the order must be set aside, if the Subordinate Judge had found it necessary that a particular issue should be framed and tried he might have proceeded under the provisions of Order XLI, Rule 25, already referred to. In any case he ougut to have kept the appeal on his file and decided it finally himself.

2. The order of the Subordinate Judge is, therefore, set aside and the appeal sent back to him for re-hearing according to law. Costs of this appeal will abide the result.

Cuming, J.

3. I agree.


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