SAMBHU DEY Vs. ARCHANA DEY & OTHERS

JUDGEMENT

(1.) A preliminary objection has been taken by Mr. Basudev Gayen as to the maintainability of the appeal appearing on behalf of the caveator. The learned Counsel for the appellant submits that this is an order of remand. Therefore, it is appealable under Order 43 Rule 1 (u) of the Code of Civil Procedure (CPC).

(2.) Sec. 104 read with Order 43 Code of Civil Procedure provides for appeal from orders. Sub-section (2) of Sec. 104 prescribes that no appeal shall lie from any order passed in appeal under Sec. 104. Whereas Order 43 provides that an appeal shall lie from the orders described under Order 43 Rule 1 under the provisions of Sec. 104. An appeal under Order 43, therefore, is an appeal under Sec. 104 from which there cannot be any further appeal from an order passed in an appeal urder Sec. 104 vis-a-vis Order 43. Order 43(1)(u) provides for appeal against an order under Rule 23 or Rule 23AORDER41 remanding a case where an appeal would lie from the decree of a appellate Court. Rule 2ORDER43 makes the rules of Order 41 applicable so far as may be to appeals from orders. Therefore, the expression "decree" used in Order 43 clause (u) is to be understood from the order of the Appellate Court. Thus, an order of remand passed in an appeal under Order 43 vis-a-vis Sec. 104 remanding a case would be appealable under Order 43 Rule 1 (u) if an appeal is permissible from such order of the Appellate Court. No appeal is permitted against the appellate order passed in an appeal under Order 43 vis-a-vis Sec. 104. Therefore, an order of remand passed under order KLI Rule 23 or 23A in such an appeal under Sec. 104 would not be appealable, because from that order, no appeal would lie. Therefore, this appeal cannot be maintained.

(3.) At this stage, the learned Counsel for the appellant submits that he may be given leave to treat the memorandum of Appeal and the application as an application for revision.