S. VENKATRAMA AIYAR Vs. UNNAMALAI AMMAL AND ANR.

JUDGEMENT

(1.) THIS is an appeal by the plaintiff against an order of the District Judge of Vellore, dated the 5th March, 1946, remanding the suit for fresh disposal on two further issues framed with permission to the District Munsiff to admit fresh evidence at his discretion. The entire records which have been called for to clear up some doubtful points show that the suit was dismissed on 3rd July, 1946, after a fresh hearing in compliance with the remand order, and at that fresh hearing the appellant who appeared through an advocate took the suit to a conclusion on the basis of the remand order without in any way objecting to it. The plaintiff filed this civil miscellaneous appeal against the order of remand on 4th September,1946, i.e., nearly two months after the final disposal of the suit. He has also filed an appeal before the District Judge against the ultimate dismissal of his suit.

(2.) WITHOUT going into the merits I think that a preliminary objection taken to the maintainability of this appeal must be upheld. It is conceded that it was filed in this Court in time, there being a long delay in the grant of a copy. The appellant however subsequent to the remand order did nothing whatsoever to signify to the learned District Judge his intention of appealing against the remand order or to apply to him for stay of further proceedings. Nor did he make any such application to this Court. He obviously took his chance of success or failure in the District Munsiff's Court on the basis of the remand order. Having failed there, he now seeks to undermine the remand order itself in this appeal. An appeal against a remand order is provided for by Order XLI, Rule 23, Civil Procedure Code, and as it was admittedly filed in time Mr. Rangaswami for the appellant urges that it is maintainable. He relies on a Bench decision of this Court in Lakshmi v. : (1911)21MLJ1063 , in which the point which fell for direct decision was whether an appeal against a preliminary order in execution could be filed even after the date of the final order which merely carried out and was consequential to the preliminary order. No appeal had been filed against the final order itself. Sundara Ayyar and Phillips, JJ., held that such an appeal could be filed and made observations by way of analogy to the effect that an appeal against an order of remand could also be filed even after the date of the final decree consequential on remand. I have perused this decision very carefully and do not consider myself bound by all the observations therein so far as remand orders are concerned which did not fall directly for decision. Following that decision I should have had no hesitation at all in holding this appeal to be maintainable, although filed after the final decree consequent on remand, had the appellant signified his intention of appealing against the order of remand by applying for stay and had stay been refused -a most unlikely contingency. He did nothing of the kind and submitted himself to the scope of the remand order without making any protest.

(3.) IT appears to me that there are some fundamental differences between a preliminary decree in execution and a final decree worked out on its basis which formed the basis of fact in Lakshmi v. : (1911)21MLJ1063 . Their Lordships in that decision proceed on the assumption that remand orders and subsequent judgments on their basis were analogous to preliminary decrees and final decrees. I think I would be justified in regarding the expressions of opinion as regards remand orders in that decision as being in the nature of obiter dicta and outside the scope of the matter which fell for decision. In the case of a remand it may often be that the first appellate Court formulates an entirely fresh footing on which the parties should proceed to a fresh trial and if the parties do so without in any way signifying or indicating their non -acceptance of this new basis for a fresh hearing, by adopting the simple method of applying for stay of further proceedings under the remand order, they must be deemed to have accepted the new basis and submitted to a fresh trial on the new footing. The only difference between the facts here and those in Sheik Salim v. Hajira Bibi, I.L.R. (1927) Cal. 506, is that no appeal was preferred from the final judgment after remand to the lower appellate Court, and that judgment was sought to be undetermined by filing an appeal against the order of remand after the final decree. I do not think that the fact that the Appellant here has also filed an appeal in the lower appellate Court makes any difference. In fact that appears to me now his only and correct remedy. It is also manifestly embarrassing, apart from other considerations, that one appeal against the remand order should be pending in the High Court and another appeal against the decree after remand should be simultaneously pending before the District Judge. The appellant having chosen to take his chance of a decision in his favour on the basis of the remand order must seek his relief in the lower appellate Court.