VIJAYARAGHAVA REDDI Vs. KOMARAPPA REDDI

JUDGEMENT

(1.) In this case the decree was passed by the District Munsif ex parte. An application was made to set aside the ex parte decree and refused, and there was no appeal from the order refusing to set aside ex parte decree. But an appeal was filed against the decree itself. The District Judge who heard the appeal holds that the defendants were not prevented by sufficient cause from appearing on the date fixed for hearing and conducting the case, but he has set aside the decree and remanded the case to the District Munsif for disposal after giving the defendants an opportunity to adduce their evidence on the ground that the District Munsif had adjourned the case on the 12th July to the 24th August 1910 not at the request of the parties but for want of time and failed to direct the witnesses who were present to appear on the adjourned date of hearing We do not propose to pronounce a definite opinion on the question whether the District Judge could, in hearing an appeal against an ex parte decree, set aside the decree and remand the case to the court of first instance, if a defendant was not given sufficient opportunity to adduce his evidence, or whether the proper procedure is not to ask the lower court to take further evidence and submit it to the appellate court for disposing of the appeal on the merits. In this case, the finding of the District Judge on the point is against the defendants as we read the appeal judgment.

(2.) The ground on which the order of remand is based is that the District Munsif ought to have directed the defendants witnesses to appear at the next day of hearing and failed to do so. But we do not find any such duty was laid on the District Munsif. Section 162 of the Code of Civil Procedure, 1882, does not, as we read the section, impose any such duty on a trying court, though probably if an application is made by a party to that effect, the court may in a proper case bind down the witnesses to attend at the next date of hearing. The second paragraph of Section 162 only deals with the court s power to detain witnesses. Nor does Subarayadu v. Chenchuramayya (1900) I.L.R. 84 M. 200 lay down any general rule to the effect supposed by the learned District Judge. We hold, therefore, that the District Judge s order of remand is without jurisdiction. We set aside the order and remit the appeal to the District Judge for disposal according to law. Costs will abide the result.

(3.) We may add that we have treated the memorandum of Civil Miscellaneous Appeal as a Revision Petition, as in our opinion, Order XLIII, Rule 1, Clause (a), Code of Civil Procedure, 1908 apparently does not give an appeal against an order of remand which is not passed under Order XLI, Rule 23, of the Code of Civil Procedure, 1908.