KOTA KANAKAYYA Vs. KAMEPALLI LAKSHMAYYA

JUDGEMENT

(1.) ENCOURAGED by a recent decision of Mack J. in Venkatrama Aiyar v. Unnamalai Ammal : (1948)2MLJ404 , Mr. V. Suryanarayana, the learned counsel for the respondents, raised a preliminary objection to the hearing of this appeal against an order of remand passed by the lower appellate Court under Order 41, Rule 23, Civil P. C. The argument is that the order of remand has been carried out and the suit decided and the remedy of the defendants, here appellants, is only by way of an appeal from the final decree. It is urged that this appeal against the order of remand has to be dismissed on that ground as was done by Mack J. in the case above cited and for the same reasons. While I appreciate the vigour of the judgment of my learned brother I venture, with respect, to think that, as an ex -pression of legal principle, it is far from convincing. As I differ from his judgment it is my duty and I shall endeavour to state as clearly as I can, the reasons which have compelled me to come to a different conclusion.

(2.) UNDER the Civil P. C. of 1882, there waa no provision for the passing of a preliminary decree and no adjudication came within the defi -nition of a decree unless it decided the suit. Sections 2, Civil P. C. of 1908, provided for the passing of a preliminary decree which determined the rights of parties with regard to all or any of the matters in controversy in the suit though it did not completely dispose of the suit. Section 97 of the Code of 1908 provided that if a party aggrieved by a preliminary decree did not appeal from it, he would be precluded from disputing its correctness in any appeal which might be preferred from the final decree. Section 562, Civil P. C. of 1882 empowered an appellate Court to remand a suit which had been disposed of on a preliminary point by the trial Court, if the appellate Court found the decision of the trial Court to be erroneous. Section 588, Clause (28), Civil P. C. of 1882 gave a right of appeal against an order of remand. Under the Code of 1882 it bad been held by Courts that a party aggrieved by an order of remand could object to its validity in an appeal againnt the final decree though he might have appealed against the order of remand under Section 688, Clause 28 but had not done so. Subha Sastri v. Balachandra Sastri, 18 Mad. 421. There was also a dissent from this view in Subbalakshmamma v. Venkatrayudu, 32 Mad. 318: (2 I. C. 625). When the Civil P. C. of 1908 was enacted, the legislature reproduced with alight variations the old Sections 562 and 588. Clause (28), Civil P. C. of 1882, in Order 41, Rule 33 and Order 43, Rule 1, Clause (u) respectively, of the new Code, and also added a new provision in Section 105(2) precluding an appellant from taking on an appeal from the final decree any objection that might have been urged by way of an appeal from an order of remand. The Madras High Court in the exercise of its rule -making powers amended Order 41, Rule 23, Civil P. C., so as to empower an appellate Court to remand a suit even in a case where the trial Court had not diapoaed of it on a preliminary point. By the amendment, this Court put an end to the interminable controversy that raged round orders of remand, whether they were passed under Order 41, Rule 23, Civil P. C., or under the inherent powers of the Court, on the decision of which point depended the appeal -ability of such orders. Suffice it to say that in Madras all orders of remand are now appealable under Order 43, Rule 1, Clause (u), Civil P. C., in all cases where an appeal would lie against the decree of the appellate Court. This resume ofthe history of legislation has been rendered ne -cessary by the reliance placed by Mack J. on certain decisions of the Calcutta High Court given before the coming into force of the Civil P. C. of 1908.

(3.) I proceed to consider the other reasons given in support of his conclusion by Mack J. The teamed Judge observed that he would have entertained the appeal against the order of re -mand though it was filed after the final decree had been passed '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.' I am unable, with respect, to Bee the point of this obser -vation. The learned Judge evidently, meant - -indeed it is so stated in his judgment - -that the appellant should have signified to the lower appellate Court his intention of appealing against the order of remand or applied to it for a stay of further proceed ings. The lower appellate Court was functus officio when it passed the order of remand. There is no provision in the Civil Procedure Code similar to Order 41, Rule 6 em -powering the lower appellate Court to stay the trial of a suit remanded by it. Even in appeals against orders of remand preferred to the High Court, stay of further trial cannot be bad aa of right. Onerous conditions may be imposed which an appellant might not find it possible to comply with. The maintainability of an appeal against an order of remand should not in my opinion, be made to depend on the grant or re -fusal of stay of further trial in the exercise of a Court's discretion.