RAM KANWAR AND ORS. Vs. BALBIR AND ORS.

JUDGEMENT

(1.) A rather piquant but interesting question has arisen in this matter with the presentation of a regular second appeal against an order of remand passed by the court of first appeal under Order XLI Rule 23-A of the Code of Civil Procedure, 1908 (for short 'the Code'). Since the case was remanded to the trial Court by the court of first appeal, no decree was drawn or was required to be drawn since there was no formal expression of an adjudication by the appeal court which conclusively determined the rights of the parties with regard to any of the matters in controversy in the suit, as is required to be qualified by the definition of 'decree' in Section 2(2) of the Code. Sub-sections (2) and (3) of Section 2 which define 'decree' and 'decree-holder' are reproduced for ready reference:--

(2.) The question presently engaging court is whether the procedure followed was legally permissible and the result capable of being approved by a superior court. Albeit, the order was passed on 19th February, 2013 after the respondents were heard through counsel. It is also noted that the respondents have not called in question the order dated 19th February, 2013 in any separate proceedings. Both the parties appear to be satisfied with the dispensation handed down by the Judge to tide over the obstacle. However, it is well settled that parties by consent cannot confer jurisdiction on court which it does not possess.

(3.) In order to explain the legal position, Mr. Sanjay Vij learned counsel appearing for the respondents, has armed his submissions with the provisions of Sections 100 and 104 of the Code and has commended to Court that the order in appeal remanding the case to the trial court was not a decree and in fact no decree was required to be drawn as per law. He has drawn my attention to the provisions of Order XLIII Rule 1(u) of the Code, which refers to Section 104 of the Code and deals with appeals from orders. Clause (u) of Rule 1 of Order XLIII reads as follows:--