ANTONI JUAS PRABHU Vs. RAMAKRISHNAYYA

JUDGEMENT

(1.) I agree that the appeal should be dismissed with plaintiff s costs.

(2.) The Appellate Court has power to reverse and remand for re-trial in a case like the present where a new party is added in appeal. That power is inherent in the Court and has not been taken away by anything in Order XLI, Rule 23 of the Code of Civil Procedure, especially as the prohibitory provision in Section 564 of the old Code of Civil Procedure has not been reproduced in the new Code. Napier, J.

(3.) I have held elsewhere that the power to remand is limited to cases where decisions on preliminary points are set aside by the Appellate Court. This view applies only, however, to cases where the construction of Order XLI, Rules 23, 24, 25 is a deciding factor. In my opinion, where an Appellate Court has added a party, those rules are inapplicable and we have to seek the proper procedure in Section 151, the Code not having made rules applicable to the position. We are not shown any reason why the procedure of the lower Appellate Court is unsustainable and I think that it is on the whole the most convenient. The appeal will be dismissed with costs of plaintiff.