(THIRUMULU) SUPPU SHETTI Vs. ARUNACHALAM CHETTIAR

JUDGEMENT

(1.) THIS is an appeal against the order of remand by the Acting Subordinate Judge of Dindigul. The District Munsif found that the plaintiff had no cause of action against the 3 defendant and dismissed the suit so far as he was concerned. On appeal by the plaintiff the Subordinate Judge held that the principle of Tweedle v. Atkinson 30 L.J. Q.B. 265 would apply to the ease and remanded it for trial by the first Court. The questions in the suit were whether the 3 defendant undertook to pay the plaint debt; secondly whether there was an agreement between the 3rd defendant and plaintiff to pay the debt; and thirdly if the debt mentioned in Ex. D was the debt assigned to the plaintiff would the principle of Tweedle V/s. Atkinson 30 L.J. Q.B. 265 apply to the facts of the case. The learned Subordinate Judge has not recorded a finding on the point whether the debt mentioned in Ex. D as having been undertaken to be paid by the 3 defendant was the debt due to the plaintiff; he should also have recorded a finding on the question whether the 3 defendant undertook orally to pay the plaintiff. If he found the point in favour of the plaintiff he would be entitled to a decree; and if he found the second point against the plaintiff and the first point in his favour, then he would have further considered the question whether on the principle Tweedle V/s. Atkinson 30 L.J. Q.B. 265 the plaintiff had a cause of action against the 3 Defendant. He has not considered those points but has only remanded the suit for trial by the District Munsif on the ground that all the circumstances of the case were not considered by the trial Court. We do not consider this is a proper order of remand. We must, therefore, set aside this order and ask the Subordinate Judge to dispose of the appeal in the light of the remarks made herein. As no appeal lies against such an order of remand we dismiss the appeal, No. 433 of 1924, but without costs. We allow the Civil Revision Petition, No. 922 of 1924, and costs of C.R.P. will abide the result.