BIDHI CHAND Vs. IVTH ADDL. DISTRICT JUDGE

JUDGEMENT

(1.) ONE Jyoti Prasad and Babu Lal (Mortgagor in short) were owner of the property. The usufructuary mortgaged the same to one Durgadas (Mortgagee in short) on 29.9.1941. The Mortgagor filed a suit for redemption of the mortgage and a preliminary decree was passed on 12.5.1976. Subsequently a final decree was also passed on 5.2.1977. The final decree was put into execution. In this execution two objections were filed; one was by Bidhi Chand and the other by Ram Gopal. They claimed that they are the tenants of the premises in dispute and cannot be evicted. These objections were dismissed on 23.9.1978 and their appeal was also dismissed on 20.12.1980. Both of them filed two separate Writ Petitions namely Writ Petition No. 2561 of 1981, Bidi Chand v. IVth Additional District Judge and others and Writ Petition No. 3630 of 1981, Ram Gopal v. IVth Additional District Judge and others. Writ Petition No. 2561 of 1981 was allowed by Justice B.D. Agrawal on 7th May, 1985 and the order dated 20th December, 1980 passed by IVth. Additional District Judge, Aligarh was quashed and he was directed to redecide the appeal in accordance with law in the light of observation contained in that order. The Writ Petition No. 3630 of 1981 was also allowed on 10.7.1991 by Justice S.K. Mukherjee who has merely followed decision of Justice B.D. Agrawal in W.P. No. 2561 of 1981 and had directed to re -decide the appeal on merit in accordance with law and in the light of observation contained in the judgment dated 7.5.1985 passed in W.P. No. 2561 of 1981, Bidhi Chand v. IVth Additional District Judge. Both these appeals were again came to be considered by IIIrd Additional District Judge, Aligarh and it appears that in between few decisions of the Supreme Court have come about where some observations are contrary to the observations made in the judgment by which the case was remanded. The 3rd Additional District Judge by his order dated 28.8.1995 has made present reference under Section 113 of the Code of Civil Procedure to the High Court to give further direction as to how the cases may now be decided.

(2.) I have heard Counsel for the parties. The Counsel for the parties had argued at length whether the remand order is binding upon the parties or not and have cited certain decisions under the Code of Civil Procedure to show if the order of remand was binding or not. It is not necessary to refer to them for the reason that - -