(SHEIKH) SALIM Vs. HAJIRA BIBI

JUDGEMENT

(1.) This is an appeal from an order of 13 May 1926 passed by the learned Officiating Subordinate Judge of Dacca, by which he remanded the case for re-hearing before the learned Munsif of Dacca. The suit was brought to recover damages upon the footing that the defendant had dispossessed the plaintiffs from the land of which the plaintiffs were entitled to possession. The trial Court held that the suit was not maintainable without the establishment of the plaintiffs title to the property, and upon that preliminary issue passed a decree dismissing the suit on 6 November 1925. The plaintiffs appealed, and by the order under appeal of 13 May 1926 the learned Subordinate Judge reversed the decree of the trial Court, and remitted the case to the trial Court to be re-heard upon the merits. The case having been returned to the trial Court was re-heard on 7 August 1926. It appears that the defendant applied for an adjournment of the case, and that at the retrial the suit was contested by the parties on the merits. On 13 August 1926 the learned Munsif passed a decree in favour of the plaintiffs. Thereafter, on 24 August 1926, the defendant preferred an appeal to this Court from the order of remand which had been passed on 13 May 1926.

(2.) A preliminary objection to the hearing of the appeal has been raised by the respondents which is to the following effect. The learned vakil for the respondents contends that, although the appeal to this-Court which has been preferred from the order of remand is within the time limited for appealing from such an order, it is not open to the defendant in the circumstances <JGN>Page</JGN> 2 of 4 that I have narrated to prefer an appeal against the order of remand. In my opinion the preliminary objection must prevail, for in this Court the point is concluded by authority against the appellant see Madhu Sudan Sen V/s. Kamini Kanta Sen [1905] 32 Cal. 1023, Baikuntha Nath Dey V/s. Salimulla Bahadur [1907] 12 C.W.N. 590, Janaki Nath Ray V/s. Promotha Nath Roy [1911] 15 C.W.N. 830, Mackenzie v Narsingh Sahai [1909] 36 Cal. 762, Ugra Narayan Singh V/s. Basanta Narain Singh [1913] 17 C.W.N. 508 , Uman Kunwari V/s. Jarbandhan [1908] 30 All. 479 and Lahshmi V/s. Maru Devi [1914] 37 Mad. 29. In all these cases except Baikuntha Nath Dey V/s. Nawab Salimulla Bahadur [1907] 12 C.W.N. 590, the appeal against the preliminary decree or the interlocutory order was presented after the final decree had been passed, and the fact that a final decree had been passed having been brought to the notice of the appellate Court at the hearing of the appeal from the preliminary decree or interlocutory order, it was held that, the final decree having been passed, the appeal against the preliminary decree or interlocutory order could not be maintained: Per Chatterjea and. Walmsley, JJ., in. Ramnath Singh V/s. Basanta Narain Singh [1913] 17 C.W.N. 868.

(3.) It was contended by the learned vakil for the appellant that the earlier cases-were distinguishable because under the-previous Code it was permissible to challenge the order of remand on appeal from, the decree passed at the retrial, whereas, under Section 105, Sub- section (2) of the Code of 1908 the only mode in which it is permissible to contest an order of remand is by a direct appeal against the order. It has been held, however, in Janaki Nath Ray's case A.I.R. [1911] 15 C.W.N. 830 that the ratio decidendi of the earlier cases was not affected by the Code of 1908. I agree with the view which was expressed by Chitty and N. Chatterjea, JJ., in that case. Now, in Madhu Sudan Sen V/s. Ramini Kanta Sen [1905] 82 Cal. 1023 Maclean, C.J., observed that if a party desire to avail himself of the privilege conferred by Section 588 in relation to an order of remand he ought to do so before the final disposal of the suit. He cannot be permitted to wait until after the final disposal of the suit and then to appeal against the interlocutory order without appealing from the decree in the suit; a fortiori he ought to prosecute an appeal against the order of remand if he knows that it is the only way in which he can contest the order of remand, and that it will not be open to him thereafter to challenge its validity at the. retrial. In my opinion, the real ground upon which the view taken by the Calcutta High Court is founded is that expressed by Stephen, J., in Baikuntha Nath Dey V/s. Nawab Salimulla Bahadur [1907] 12 C.W.N. 590. The basis of the decision in Madhu Sudan Sen V/s. Kamini Kanta Sen [1905] 32 Cal. <JGN>Page</JGN> 3 of 4 1023 may be regarded as being the consent of the appellant to the proceedings subsequent to remand, implied by his not appealing against the order of remand during those proceedings.