MANI MOHAN MANDAL Vs. RAMTARAN MANDAL

JUDGEMENT

(1.) This is an appeal from a decision by the lower Appellate Court. For that decision there can be no justification unless it can be brought within the terms of Rule 23 of Order XLI. But that clearly cannot be done, for the Court of first instance did not dispose of the case on a preliminary point but on the merits after discussing the whole of the evidence that the parties, without any restriction, placed before it.

(2.) It has been suggested before us that Rule 23 is not exhaustive, and for that purpose we have been referred to Section 107, Sub-section (1), Clause (6), of the Code where, no doubt, it is said in general terms that an Appellate Court shall have power to remand a case. But this argument overlooks the opening words of the section, which provide that subject to such conditions and limitations as may be prescribed a Court shall have that power. If we turn to the definition clause we find that "prescribed" means prescribed by rules, and rules" means rules and forms contained in the First Schedule or made under Section 122 or Section 125. These rules provide that in the case of a lower Appellate Court the power" of reversal and remand is limited to the position described in Rule 23, Order XLI. And this is the general rule except under special conditions which have no application in the circumstances of this case.

(3.) I may here point out what is obvious on a perusal of the Code as a whole that the Code consists (i) of that which is termed "the body of the Code" and (ii) of the rules.