KATHIRU PILLAI Vs. DEVASYA MAMMAN

JUDGEMENT

(1.) This civil miscellaneous appeal is by the defendant against the order of remand. The suit against him was for mortgage money. He contended that the suit is barred by limitation. The trial Court held against him; but in appeal before the Subordinate Judge, that finding was reversed and it was held that the suit for mortgage money is barred by limitation; but the learned appellate Judge has remanded the case for consideration of the question whether the property could be recovered by the plaintiff. In the plaint, the B prayer was that in case the A relief, which was in respect of money, was not allowed, he might be given a decree for recovery of the property. This B relief was taken up for consideration by the learned appellate Judge and as that was not specifically considered by the trial Court, he remanded it for consideration by the learned Munsiff. The defendant Is aggrieved by the order of remand as that has been passed in respect of a matter on which there was no appeal.

(2.) The question for consideration is whether the learned appellate Judge is justified under Order 41, Rule 33 of the Code of Civil Procedure in making the order of remand. It is true that even though in the plaint B relief was also claimed, that was not put on trial. No issue also was raised touching that question. The trial went on, only in respect of the money; in respect of the right of the plaintiff to recover the mortgage money, and on that issue the trial Court held that money could be recovered as it was not barred. Aggrieved by this finding the defendant appealed and even though the point with which the appellate Court was concerned was the right of the plaintiff to recover the mortgage money, the B relief also seems to have engaged the attention of the appellate Judge from the very beginning. Three points were raised for consideration in the appeal and they are :--

(3.) Learned counsel for the appellant invited my attention to a Bench decision of the Calcutta High Court in Mina Goswami v. Ramendra Nath Dutta, AIR 1967 Cal 230) and argued that the learned Judge has gone wrong in his direction to hold a further enquiry with regard to a matter of which there was no appeal. That was a suit for ejectment, where the defendant had made a counter claim. Ejectment was decreed; but the counter claim was dismissed. The defendant filed appeal against the decree for eiectment. That appeal failed but the question of defendant's counter claim was remanded to the trial Court though there was no appeal so far as the counter claim was concerned. It was held that :--