MUPPAVARAJU VENKATA RADHAKRISHNA RAO Vs. VENTHURUMILLI VENKATARAO

JUDGEMENT

(1.) Mr. Kajah Iyer for respondents raises a preliminary point that no appeal lies.

(2.) The First Court heard and decided the case before it fully on all issues. The lower Appellate Court permitted the plaint to be amended before it and remanded the case for trial on the amended plaint to the First Court. This order of remand clearly cannot be brought within Order XLI, Rule 23, C.P.C. even in its widest interpretation as laid down by the Full Bench in Malayath Veetil Raman Nayar V/s. Krishnan Nambudripad 69 Ind. Cas. 828 : 45 M. 900 : 31 M.L.T. 208 : 16 L.W. 425 : 43 M.L.J. 354 : (1922) M.W.N. 589 : (1922) A.I.R. (M) 505 (F.B.). Nevertheless the only course open to an Appellate Court which permits before it an amendment of the plaint is to remand the case for trial to the First Court vide Uzir Ali Sardar V/s. Savai Behara 32 Ind. Cas. 791 : 43 C. 938 : 20 C.W.N. 547 and Narottam Rajaram v. Mohanlal Kahandas 17 Ind. Cas. 891 : 37 B. 289. Here then we are confronted with a legal order of remand which does not come within the purview of Order XLI, Rule 23, and cannot, therefore, subscribe to the contention of the appellant that such an order is unjustified in law. Now it is only orders of remand passed under Order XLI, Rule 23 which are subject to appeal. The present order which is not passed under that section, but under the inherent powers of the Court, under Section 151, is not appealable. Our view is supported by a decision of Bench of this Court in the case reported, as Athappa Chetty V/s. Ramanathan Chetty 53 Ind. Cas. 417 : 10 L.W. 359 : 37 M.L.J. 530. Our attention has been called by the appellant to the decision in Malayandi Goundan V/s. Bomman Poosari 71 Ind. Cas. 204 : 17 LW.159 : (1923) A.I.R. (M) 3310, but we do not consider that the case lays down more than this, that the inherent powers of the Court to remand, if existent at all, should not be exercised in any case in which anpther procedure more definitely laid down by the Code, may be followed. Appellant has also relied on certain observations by the referring Judges in Malayath Veetil Raman Nayar V/s. Krishnan Nambudripad 69 Ind. Cas. 828 : 45 M. 900 : 31 M.L.T. 208 : 16 L.W. 425 : 43 M.L.J. 354 : (1922) M.W.N. 589 : (1922) A.I.R. (M) 505 (F.B.) but, in the judgment in that case, all the Judges were careful to restrict their judgment to the application of Order XLI, Rule 23 to the case before them, to which they all agreed it applied. That case does not therefore, help the appellant. The case of the Lahore High Court quoted in Mahmud Shah v. Talab Hussain Shah 73 Ind. Cas. 915 : (1924) A.I.R. (L.) 245 is exactly in point and we agree Avith the views therein expressed.

(3.) The appeal is, therefore, incompetent and is dismissed with costs.