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 O. 41, R. 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.) THAT is not the position in the case on hand. Here, justice cannot be done and a complete consistent decree cannot be passed without dealing with B relief also on the merits. Of course, in the present appeal as was the case in the decision cited that a part of the decree was appealed against viz., the decree for money. In disposing of such an appeal, the appellate Court has power to make further orders with regard to the other part of the claim viz., recovery of the property and mete out justice to the parties. It cannot be said that the appellate Court in the circumstances, has gone in excess of its jurisdiction and has dealt with matters which it was not competent to deal with under O. 41, R. 33, Civil P. a The order of remand is therefore proper and in confirmation of this C. M. appeal is dismissed. Appeal dismissed.