KASI ALIAS ALAGAPPA CHETTIAR AND ORS. Vs. RM.A.RM.V. RAMANATHAN CHETTIAR ALIAS SRINIVASAN CHETTIAR THROUGH HIS NEXT FRIEND, AV.PL.CT. RAMANATHAN CHETTIAR AND ANR.

JUDGEMENT

(1.) THIS appeal arises out of a suit for contribution and accounts by the plaintiffs instituted in these circumstances. The first and second defendants are the sons of first plaintiff's brother. Plaintiffs 2 to 11 are either the sons or grandsons of the first plaintiff. The third defendant is the son of the first plaintiff. The first plaintiff was the manager of the family. The first and second defendants filed O.S. No. 18 of 1934 in the District Munsiff's Court of Madanapalle on the 20th January, 1934, for partition. Two preliminary decrees are said to have been passed in that suit on the 8th July, 1936, and on the 26th February, 1941, respectively. During the trial of that suit the first plaintiff as the manager of the family claimed contribution in respect of certain items of expenditure incurred by him for family purposes. He was referred to an independent suit. In pursuance of that direction he filed O.S. No. 171 of 1941 to recover contribution from the defendants towards expenditure incurred by him in certain litigation and also certain other items. The trial Court went into the various items in respect of which contribution was claimed and after coming to conclusions with regard to the liability or otherwise of each party found that in fact the plaintiff himself on taking account was indebted to the defendants. In that view he dismissed the suit. The plaintiff appealed and before the Subordinate Judge, Chittoor, only a few points were specifically urged which were considered by the appellate Judge under three broad headings. The first group of items related to expenses incurred in the litigation between the first plaintiff and Chengamma. The amount claimed was Rs. 1,359 -13 -3. The second item related to expenses incurred in the litigation between Chinna Muni Reddi and the plaintiff and also the mesne profits that the first plaintiff had to pay as a result of the decree in that suit. The amount involved in this item was Rs. 1,551 -2 -0. The third item was a sum of Rs. 100 paid by the first plaintiff to one Thoti Muni Reddi and it is stated that the first plaintiff incurred this item of expenditure for family purposes prior to the partition. The appeal was allowed in part allowing some items to the plaintiffs and disallowing some other items. With regard to those items that were allowed in favour of the plaintiff, defendants 1 and 3 have preferred this appeal while with regard to the items disallowed against them, the plaintiffs have filed cross-objections.

(2.) AT the outset Mr. Sampath Aiyangar for the respondents-plaintiffs has raised a preliminary objection contending that the civil miscellaneous appeal under Order 43, Rule (1)(u) is not maintainable as the order passed by the Subordinate Judge is not an order of remand within the meaning of Order 41, Rule 23, Civil Procedure Code. He urges firstly that the appellate order is to all intents and purposes a final decree completely adjudicating the liability of the parties in respect of all matters raised before him and secondly that as it purports to be a preliminary decree it is appealable by way of a second appeal and not as if it were an order passed under Order 43, Rule 1. The last contention is that in any case it is not an order of remand " in the interests of justice " within the meaning of Order 41, Rule 23. The basic contention however which underlies all these objections is that the appellate order is not a mere order which can be appealed against under Order 43, Rule 2, but is a decree, whether preliminary or final against which a second appeal lay and not a mere civil miscellaneous appeal. This contention appears to be sound and supported by authority.

(3.) THE C.M.A. is dismissed with costs. The memorandum of cross -objections is not pressed and is dismissed. No order as to costs.