SHYAM LAL Vs. ADITYA PRASAD JALAN

JUDGEMENT

(1.) THIS appeal is directed against an order of remand passed by the lower Appellate Court. The facts, as appearing from the lower appellate Court's judgment, are these:

(2.) THE lower appellate court allowed the Plaintiff's appeal and set aside the trial court's judgment. The suit was remanded to the trial court with a direction that the parties should be given opportunity to adduce oral evidence. The trial court was further directed to pass a specific order on application No. 56C and if necessary to make a local inspection itself or issue a commission. The Defendants felt aggrieved with the judgment of the lower appellate court and have come up in the instant appeal in support thereof. I have heard the learned Counsel, Shri K.N. Tripathi Counsel main contention is that in view of the joint statement contained in 40C the parties had constituted the trial court to act as the referee and the decision of the referee was binding on them and in such a situation, none of the parties had a right to file an appeal against the trial Court's judgment. The learned Counsel has placed reliance on a Division Bench ruling of the Madras High Court reported in Bambarana Guddappa Rai v. Ramanna Banta : AIR 1937 Mad 95. In the said case, it has been laid down as under:

(3.) ALL this is indicative of the fact that the trial court did not think it admissible and expedient to act in the manner in which the parties initially desired him to act by 40C. In this view of the matter, the Appellant's contention that no appeal lay from the trial Court's judgment is not tenable. The trial court's decree cannot be equated with a consent decree from which no appeal lies.