MRIGENDRA KUMAR MAJUMDAR Vs. SIDHESHWAR SHIT

JUDGEMENT

(1.) This appeal is by the plain tiffs. It is directed against an order of remand by the lower appellate court, sending the case back to the trial court for a fresh trial in the light of certain observations, made in its judgment.

(2.) The order is plainly one under Order 41, Rule 23 of the Code of Civil Procedure, and therefore not appealable under Order 43, Rule 1, Clause (u) of the Code. The remand was, obviously, under Section 151 of the Code. It is difficult to hold that such a remand is appealable, particularly when the lower appellate court, in making this order, did not fully decide or conclusively determine anything on the merits or any of the disputes between the parties or any of their disputed rights but left the entire matter for decision to the trial court in the light of certain directions, given in its Judgment. It is difficult to hold that such an order would amount to a decree under the Code to attract to it the appeal provisions therein. Upon that view, which is amply supported by authorities (Vide e.g. Banka Behari v. Birendra Nath, (1928) 17 Cal LJ 69: (AIR 1927 Cal 850), if it unnecessary for me to express any opinion on the debatable question whether an order of remand may, under certain circumstances, amount to a decree or satisfy the test therefor and be appealable as such. I would. however, point out that, in making an order ot remand to send the case back to trial court for fresh or further consideration, the lower appellate court has always to set aside the decree of the trial court. The mere fact, therefore, that the decree of the trial court has been set aside would not make the lower appellate court's order of remand a decree and appealable as such Indeed, otherwise every order of remand under Section 151 of the Code would become appealable The two decisions of this Court, cited by Mr. Sen Gupta, namely, Bhairab Chandra Dutt v. Kali Kumar Dutt, (1923) 37 Cal LJ 491, : (AIR 1923 Cal 606) and Rama Nath Naskar v. Tarak Nath Banerjee, AIR 1928 Cal. 305, if they intended to lay down any such extreme proposition, would if I may say so with respect, go against fundamental concepts and would be opposed to an overwhelming host of authorities, which have, foi years, settled the law to the contrary. I am accordingly, unable to hold that the present appeal is maintainable in law.

(3.) I would, therefore, dismiss this appeal on the preliminary ground of incompetency. This, however, will not affect, or prejudice, in any way, the plaintiffs' remedy, if any under the law. against the impunged order by way of any other proceeding in this Court.