MEERA Vs. NAGESH

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 18-8-2014 in R.A. No. 31 of 2010 passed by the Senior Civil Judge, Kumta. By the impugned judgment, the learned Appellate Judge remitted the matter to the Trial Court to hold an enquiry with regard to mesne profits and also consider the division of the movable properties as per the preliminary decree and to draw final decree by following the procedure as per law.

(2.) The facts of the case relevant for deciding this appeal are that O.S. No. 68 of 1980 filed by the appellant for partition and separate possession was allowed and a preliminary decree was passed. The said decree having become final, FDP No. 3 of 1996 was filed to pass the final decree. As against the decree passed therein, R.A. No. 31 of 2010 was filed in the Court of the Senior Civil Judge, Kumta. An application was filed in R.A. No. 31 of 2010, seeking permission to lead evidence, in view of the amendment effected to Sec. 6 of the Hindu Succession Act, 1956, The Appellate Court by a judgment and order dated 31-10-2011, remanded the case to the Trial Court. Assailing the said judgment and order, MSA No. 535 of 2012 was filed. Said appeal was allowed on 27-1-2014 and the impugned judgment/order was set aside and the lower Appellate Court was directed to consider the matter, insofar as the alteration of shares is concerned, by keeping in mind the principles enunciated in the case of Prema Vs. Nanje Gowda and Others, (2011) 6 SCC 462. The Appellate Court was directed to decide the matter with within 6 months' period commencing from 1-3-2014. It was made dear that if a decision is to be taken only after recording evidence, opportunity be provided to be parties to lead additional evidence, if any or evidence afresh as the case may be. The lower Appellate Court having passed the judgment and order dated 18-8-2014, allowing the appeal and setting aside order dated 19-7-2006 passed in FDP No. 3 of 1996 and remanded the matter to the Trial Court, this appeal was filed.

(3.) Sri Jagadish Patil, learned Advocate, contended that the Court below has committed error and illegality in passing the impugned order. He submitted that in view of the judgment dated 27-1-2014 passed in MSA No. 535 of 2012, it is not open to the Court below to remand the case again to the Trial Court. He submitted that there is abdication of duty by the lower Appellate Court and hence, interference is called for.