SHARMILA Vs. SUBHADRA

JUDGEMENT

(1.) THESE appeals challenge orders of remand passed by a learned Single Judge in appeals filed before this court under S. 96 of the Code of Civil Procedure in terms of S. 12 read with S. 13 of the Kerala Civil Courts Act, 1957. The appeals are sought to be filed as Civil Miscellaneous Appeals invoking O. 43 R. 1 (u) of the Code of Civil Procedure and not on the basis of the right conferred by S. 5 of the Kerala High Court Act, 1958. When these appeals came up for orders, an objection was raised on behalf of the respondents that these Civil Miscellaneous Appeals are not maintainable. What we are answering now is the question of the maintainability of Civil Miscellaneous Appeals against orders of remand passed in appeals by a learned Single Judge of this Court, in appeals arising from original decrees of the Subordinate Judge's Court.

(2.) S. 5 of the Kerala High Court Act in so far as it is relevant, provides that an appeal would lie to a Bench of two Judges from a judgment of a single Judge in exercise of appellate jurisdiction in respect of a decree or order made in exercise of original jurisdiction by a subordinate court. The Kerala High Court Act does not define the expression 'judgment' occurring in S. 5 (ii) of the Kerala High Court Act.

(3.) AN appeal filed under S. 96 of the Code is governed by O. 41 of the Code. AN appeal filed in terms of S. 96 could be disposed of in any one of the modes prescribed by O. 41 of the Code. The Court could also dispose of the appeal in terms of R. 23 or 23a of O. 41 by remanding the suit to the trial court for a fresh trial and disposal. A decision remanding a suit rendered in an appeal filed under S. 96 of the Code of Civil Procedure is not understood as a judgment but it is understood as an order. This is clear from the decisions in Damodaran v. Sankaran, 1985 KLT 153, and St. Pauls Yacobaya Suriyani Church v. Ithappiri, 1971 KERLT 871, referred to above. On the scheme of the Code, such an order of remand is appealable with reference to clause (ii) of S. 104 (1) of the Code providing for an appeal from an order made under Rules from which appeal is expressly allowed by the Rules. The prescription is in O. 43, and R. 1 (u) of O. 43, providing for an appeal from an order of remand under R. 23 or 23a of O. 41, where an appeal would lie from the decree of the appellate court. The appeal against the decree contemplated here, cannot include an appeal against the decision of a Single Judge of the High Court, since, the Code does not provide for an appeal against such a decree. The right to appeal against a judgment of a Single Judge in exercise of appellate jurisdiction under S. 96 of the Code is conferred only by S. 5 (ii) of the High Court Act. Neither S. 96 nor O. 41 of the Code provides for a further appeal to the High Court from the decision of a Single Judge of the High Court rendered in an appeal under S. 96 of the Code. S. 100 of the Code providing for a Second Appeal is also not applicable since a Second Appeal lies only from an appellate decree of a subordinate court. O. 41-A only makes applicable, the Rules of O. 41 to an appeal to the High Court from original decrees of subordinate courts. That also does not provide for a further appeal from a decision rendered in an appeal under S. 96 of the Code. O. 42 only makes applicable the Rules of O. 41 as modified by O. 41-A, to appeals from appellate decrees of subordinate courts. O. 42-A provides that the Rules of Orders 41 and 41-A shall apply so far as may be, to appeals from decrees and orders of a Single Judge to a Division Bench. Thus on the scheme of the Code, no further appeal is provided to a Division Bench of the High Court from a decision rendered by a Single Judge in an appeal filed under S. 96 of the Code. In that context, it is clear that the right of appeal is traceable only to S. 5 (ii) of the High Court Act. We may notice in this context that, under S. 4 of the Code, rights available under any other provision, is saved.