LACHMINARAYAN TEKRIWALA Vs. JOGESH CHANDRA LAHARE

JUDGEMENT

(1.) This is an appeal from a decision of the learned District Judge of the Santal Parganas, remanding a case to the Court of the Subordinate Judge as the Subordinate Judge had disposed of a mortgage suit on a preliminary point. The appellant before us was the purchaser of the equity of redemption of the property mortgaged and was for that reason made a party to the mortgage action. The appellant seems to have been the defendant who bore the burden of the defence in the trial Court and two substantial questions were raised by him.

(2.) It was contended in the first place that the transaction was a fictitious one intended to defeat creditors and secondly that the mortgage-deed was unenforceable as it had not been attested in accordance with law. The trial Court determined the latter of the two questions in favour of the defendant and accordingly dismissed the suit. The matter then came on appeal to the District Judge and the District Judge reversed the finding of the Subordinate Judge on the question of attestation, and accordingly remanded the action, as I have already stated, to the Subordinate Judge for the determination of the other issues in the case.

(3.) It was faintly argued by Mr. Sushil Madhav Mullick, who appears for the appellant, that the question of fact whether the document was properly attested or not was open to this Court; but that argument cannot possibly be supported. The determination of that question by the District Judge was the determination by the last Court of fact; and although the matter before us is whether the remand order was erroneous or not, no question of fact which was to be determined by the District Judge in his appellate jurisdiction can possibly be open to this Court. Speaking for myself I cannot imagine such a case, but it may well be that if there were any questions of fact strictly within the ambit of the remand order as this Court is the first Court of appeal as regards that order, it might be said that that question of fact, if strictly coming within the ambit of the remand order, might be open for determination by this Court. But I purposely do not come to any decision on that matter. I am however clearly of the opinion that the question of fact urged by Mr. Mullick is not open to this Court for determination. That would dispose of the appeal had it not been for another question which has been argued by Mr. Mullick on behalf of the appellant.