SANNA BASAVARADDI Vs. SHIVASHANKARAPPA @ SHANKARAPPA

JUDGEMENT

(1.) WITH the consent of the learned counsel appearing for the parties, the matter is taken up for final disposal. Appellant herein was the petitioner in a final decree petition bearing No. FDP No. 6/1993, which was pending on the file of the Principal Civil Judge (Jr. Dn.), Gadag. Respondents herein were the respondents in the said final decree petition. The said petition had been filed under Order 20 Rule 18 of CPC. The FDP Court has allotted 1/7th share each to respondent Nos. 3 to 8 therein and 1/7th share to the petitioner who is the appellant herein. Respondent No. 6 -Shivashankarappa in FDP No. 6/1993, being aggrieved by the said order passed by the FDP Court, chose to file an appeal under Section 96 of CPC before the Court of the Senior Civil Judge, Gadag in R.A. No. 43/2012. Several grounds had been urged inclusive of one relating to the non consideration of the report of the Commissioner and even in regard to variation of shares done by the FDP Court. After hearing the arguments, the learned Judge of the first appellate Court in R.A. No. 43/2012 has set aside the order passed in FDP No. 6/1993 and remanded the matter to the trial Court to consider the Commissioner's report submitted by the Court Commissioner and to decide the matter once for all. This order is dated 25.03.2013. It is this order, which is called in question under Order 43 Rule 1(u) of CPC by way of Second Miscellaneous appeal.

(2.) THE moot point that arises for consideration in this appeal is:

(3.) NORMALLY , the appellate Court will presided over by a relatively senior Judge who has greater experience and expertise than a Judge in the trial Court. Admittedly, the trial Courts are already over burdened and in this view of the matter, it is not advisable for the first appellate Court to mechanically remand the matter and burden the trial Court. If the remand so made was an open remand, this Court would not have definitely interfered with. This is a limited remand directing the trial Court to consider the Commissioner's report and the variation of share and thereafter to pass appropriate orders. These things could be done by the appellate Court itself.