JACOB JOHN Vs. KUNJAMMA @ PODIYAMMA

JUDGEMENT

(1.) "Is a Regular Second Appeal maintainable against an order of remand passed by the lower appellate court" is the short question that now arises for consideration in the appeal.

(2.) Heard the learned Senior Counsel appearing for the appellant and also the learned counsel appearing for the respondents.

(3.) An objection has been raised by the learned counsel appearing for R1 and R2 that a Regular Second Appeal under Sec.100 of CPC is not maintainable against an order of remand passed by the lower appellate court. It is pointed out by the learned counsel for the respondents that an appeal is provided under Sec.104 and Order XLIII of CPC against an order passed under Rule 23 or 23A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court as provided under Order XLIII Rule 1(u) of the CPC. As per Rule 23 of Order XLI, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment or order to the court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suit, and proceed to determine the suit. The relevant portion of the judgment of the lower appellate court is extracted here under :-