MANAKLAL Vs. MADANLAL

JUDGEMENT

(1.) THIS is a second appeal by Manaklal against the judgment and decree of the Civil Judge of Jaisalmer. The appeal came up for hearing before a learned Single Judge of this court, and he has referred it to a Division Bench.

(2.) A suit was brought by Madanlal plaintiff respondent against Manaklal and 2 others who are defendants respondents. The plaintiff prayed for redemption of a certain shop. The suit was contested by the defendants, and they denied the right of the plaintiff to redeem the shop. The Suit was dismissed by the Munsif holding that the plaintiff had no right to redeem the shop. The Munsif also held that the suit was barred by limitation, though there was no issue as to limitation. There was an appeal by the plaintiff, and the first appellate court held that the plaintiff had a right to redeem. As to the question of limitation, the first appellate court held that as no issue had been framed on it, the parties were not able to lead all the evidence that was required. It, therefore, set aside the decree of the Munsif, and remanded the suit with a direction that an issue of limitation should be framed, as after such evidence as might be adduced by the parties, the suit should be disposed of according to law. A decree was framed consequent on this judgment of the first appellate court, and Manak-mal defendant has come in second appeal from that decree.

(3.) IN Permanand Kumar vs. Bhon Lohar (5) it is pointed out that an order of remand under sec. 151 is appealable only when it amounts to a decree. Where the order of remand merely sets aside a decree of the trial court and does not itself decide any of the points raised for determination, and does not determine the rights of the parties with regard to any of the matters in controversy in the suit, it cannot amount to a decree and must be treated as an order, and to appeal would lie against it as a decree The mere fact that the order reverses the decree of the trial court and deprives the plaintiff of the valuable right acquired thereunder would not make the order of remand a decree, unless that order itself determines any of the points arising for determination in regard to the matters in controversy in this suit. If we may say so with respect, this is the right view to take, where the first appellate court reverse the decree and also decides some points in controversy and sends back the case for further trial, there is a decree clearly within the meaning of sec. 2 (2) of the Civil Procedure Code.