LAWS(PVC)-1926-9-39

BALLA MALLAYYA Vs. PEDDI VEERAYYA

Decided On September 27, 1926
BALLA MALLAYYA Appellant
V/S
PEDDI VEERAYYA Respondents

JUDGEMENT

(1.) This is an appeal against an order or remand by the Lower Appellate Court and the preliminary point is taken that no appeal lies. The suit was for the restoration of a certain bund by the defendants, and the plaintiffs went to trial before the Munsif on the following issues: 1. Whether the plaintiffs are entitled to have the bunds?

(2.) Whether the defendants were justified in removing the bund?

(3.) To what relief? 2. The Munsif decreed the suit. On appeal to the Subordinate Judge, he found that the appeal could not be satisfactorily disposed of in the absence of certain findings. He therefore reversed the Munsif's decision, settled fresh issues and remanded the suit for a fresh disposal by the Munsif's Court. 3. The appeal is brought under Order 43, Rule 1, Clause (a) which allows an appeal from an order under Order 41, Rule 23. The latter is obviously inapplicable here and it is hardly contended that the suit was disposed of by the Munsif on a preliminary point. It is argued that the remand of the whole suit was incompetent and that the Subordinate Judge ought to have proceeded under Order 41, Rule 25, and called for findings while retaining the suit on his own file. It was held in Anthappa Chetty V/s. Ramanathan Chetty (1919) 37 MLJ 536 a judgment to which I was a party) largely on the authority of Ghuznavi V/s. The Allahabad Bank, Ltd., that an Appellate Court has an inherent power of remand under Section 151, Civil P. C., apart from Order 41, Rule 23, and that no appeal lies against an order made in exercise of this power. I adhered to this decision in Sheikh Muhammad Maracayar V/s. Rangasiuami Naidu and am not prepared to reconsider the matter so far as I am concerned. I may add that my view is supported by Radhakrishna Rao V/s. Venkata Rao. There is therefore no appeal in this case.