RIGHT HONOURABLE THE SECRETARY OF STATE FOR INDIA IN COUNCIL, REPRESENTED BY THE COLLECTOR OF VIZAGAPATAM Vs. ALLU JAGANNADHAM

JUDGEMENT

(1.) The respondent filed a suit in the Court of the District Munsif of Chodavaram to recover with interest a sum of Rs. 389-8-0 which he alleged the Government had unlawfully made him pay. The respondent was the President of the Union Board of Dharmavaram, Vizagapatam district, from 1921 to the month of April, 1928. On the 30 March, 1928, the Examiner of Local Fund Accounts passed an order of surcharge against the respondent in respect of a sum of Rs. 455-8-0 on the ground that he had failed to collect arrears of house tax to this amount during the years 1921-22, 1922-23 and 1923-24, and consequently the claims had become barred by the law of limitation.

(2.) Rule 6 of the rules relating to the powers of auditors to surcharge, framed under Section 199(2)(0) of the Madras Local Boards Act, provides that any person aggrieved by a disallowance, surcharge or charge made against him, may apply to the principal Civil Court of original jurisdiction to set the order aside. The rule also provides that in lieu of applying to Court the aggrieved person may appeal to the Local Government. The respondent chose the alternative course, and asked the Local Government to cancel the order of surcharge. His petition was rejected, but on an application for review, the Local Government reduced the amount of the surcharge to Rs. 389-8-0, which the respondent paid under protest on the 15th October, 1928. On the 14 December, 1929, he filed this suit against the appellant, the Secretary of State for India in Council, for a decree for Rs. 426, being the Rs. 389-8-0 with interest. The respondent averred that it would have been unlawful for him to collect the arrears of tax, because, according to him, the notification under which the tax was levied was invalid. The appellant contended that the Court had no jurisdiction to try the suit. This contention was rejected by the District Munsif, who accepted the respondent's plea that the notification was invalid. The appellant appealed to the Court of the Subordinate Judge of Vizagapatam. The appeal was heard by the Additional Subordinate Judge, who concurred in the findings of the District Munsif, but at the request of the respondent remanded the case to the District Munsif to decide whether the tax could be deemed to be lawfully levied under an earlier notification. The Additional Subordinate Judge did not content himself with merely calling for a finding on this further issue, but set aside the decree which the District Munsif had passed. On remand the District Munsif held that the earlier notification was also invalid and accordingly passed a fresh decree. This resulted in the appellant again appealing to the Court of the Subordinate Judge. The Additional Subordinate Judge held that the District Munsif was also right in declaring the earlier notification to be invalid. The appellant then appealed to this Court and the appeal has been placed before a Full Bench as the Court is asked to reconsider the judgment in Jainul Abideen Marakayar V/s. Habibulla Sahib (1927) 27 L.W. 483, which was decided by a Division Bench.

(3.) In Jainul Abideen Marakayar V/s. Habibulla Sahib (1927) 27 L.W. 483, Wallace and Thiruvenkatachariar, JJ., held that Section 105 (2) of the Code of Civil Procedure confines an appeal against an order of remand to the question of the correctness of the order of remand. It is open to the appellant to impeach the order of remand on the ground that it was illegal as the decision of the first Court was not on a preliminary point or on the ground that the decision of the preliminary point by the first appellate Court is erroneous. The learned Judges considered that no other questions could be raised in an appeal against an order of remand whatever bearing they might have upon the merits of the appellant's case. Section 105 (2) states that notwithstanding anything contained in Sub- section (1), where a party aggrieved by an order of remand made from which an appeal lies does not appeal, he shall thereafter be precluded from disputing its correctness. Order 41, Rule 23 says that where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the appellate Court may, if it thinks fit, by order remand the case and may further direct what issue or issues should be tried on the case remanded. This rule has been amended by this Court under the powers conferred upon it by the Code. The power of remand is not now confined to the case where there has been disposal of the suit upon a preliminary point.