SHIVALINGAWWA Vs. SANGANNA

JUDGEMENT

(1.) This appeal under Or.43, Rule 1 CPC, is by the first defendant in OS.243 of 1970 on the file of the Munsiff, Gulbarga. and directed against an order of remand made by the Prl Civil Judge, Gulbarga, in RA.57/1973.

(2.) The suit was filed by the first respondent herein, for a declaration of title and for permanent injunction restraining the appellant herein (first defendant) from executing the maintenance decree in OS.82/1 of 1962 on the file of the II Addl Munsiff, Gulbarga. The latter decree had been obtained by her against her husband-the second respondent herein. The first respondent was none other than the brother of the second respondent, the husband of the appellant. By virtue of a partition dl .9-11-1965 between the respondents infer se, a conveyance in respect of the suit property which had fallen to the share of the second respondent, came to be executed on the very next day i.e., 10-11-1965. in favour of the first respondent for an ostensible consideration of Rs.5,000. The appellant herein, the maintenance decree-holder, sought for the attachment of the suit property in execution of the decree for maintenance in her favour. Since the claim of the first respondent for raising the attachment was refused, the present suit came to be filed by the first Despondent. The learned Munsiff after framing the relevant issues, dismissed the suit of the first Despondent herein, against which an appeal was preferred by him before the learned Civil Judge. The learned Civil Judge, without examining the appeal on meprits, merely came to the conclusion that the issues as framed did not correctlv reflect the position as evidenced by the pleadings of the parties. He, therefore, 'recast' thie issues and set aside the judgment of the learned Munsiff and remitted the matter for further trial on the basis of the said issues. Aggrieved by this order of remand, the first respondent appeals.

(3.) It is contended for the appellant by Sri L. Govindaraj, the; learned Counsel, that the learned Civil Judge had not exercised his jurisdiction in accordance with law. He also relied on an enunciation of this Court in Akkanagamma v. Nageswariah, AIR. 1088 Mys. 266=(1968) 1 Mys.L.J,, 288. But, on behalf of the contesting resppndents, Sri A.M.Farooq, the learned Counsel, submitted that the principle underlying the said enunciation had been fully complied with in that the merits of the case had been considered by the learned Civil Judge before malting the order of remand.