BIMAL MAJUMDAR Vs. LIEUTENANT GOVERNOR

JUDGEMENT

(1.) When this appeal is called on for hearing, our attention is drawn that this is an appeal against an order of remand. Therefore, under Chapter II, rule 1 of the Appellate Side Rules of the High Court at Calcutta, this appeal is to be considered by a Single Judge.

(2.) Mrs. Anjili Nag, learned advocate appearing for the appellant Gopala Binnu Kumar, learned advocate appearing for the respondent Nos. 3, 4, 5, 6 and 7 jointly submit that, at the time of hearing of this appeal under rule 11 of Order 41 of the Code of Civil Procedure, no substantial question of law was formulated.

(3.) In Narayanan v. Kumaran and others, 2004 4 SCC 26, the Supreme Court of India held that it has been obvious that an appeal would lie from an order of remand only in those cases in which an appeal would lie against the decree if the appellate court instead of making an order of remand had passed a decree on the strength of the adjudication on which the order of remand was passed. The test has been whether in the circumstances an appeal would lie if the order of remand was to be treated as a decree and not a mere order. In these circumstances, it has been quite safe to adopt that appeal under Rule 1(u) of Order 43 should be heard only on the ground enumerated in section 100 of the Code of Civil Procedure.