JARBANDHAN Vs. UMAN KUNWARI AND RAM RAJI KUNWARI

JUDGEMENT

(1.) This is an appeal from an order of remand made under Section 562 of the Civil P. C. in a suit for pre-emption.

(2.) The Court of first instance dismissed the suit on the 30 of April 1906, but the lower appellate Court set aside the decree of that Court and remanded the case on the 27 of March 1907. From this order the present appeal was preferred on the 29 of June 1907. Before, however, the appeal was filed, the Court of first instance had carried but the order of remand and decreed the claim on the 20 of May 1907. Hence it is contended on behalf of the respondents that the appeal cannot be entertained. As the rulings on the point are conflicting, the case has been referred to a Full Bench.

(3.) The first question we have to determine is whether an appeal lies from an order of remand passed under Section 562 of the Civil P. C., if before the filing of the appeal the suit has been decided in compliance with the order of remand. In our judgment the question must be answered in the affirmative. Aparty aggrieved by an order of remand has, under Section 588, Clause (28), of the Civil P. C., a right of appeal from the order, and the period of limitation for such an appeal is ninety days under Art. 156 of the second schedule to the Indian Limitation Act. Unless, therefore, the law has imposed a restriction on this right, an appeal is maintainable if it is filed within the prescribed period of limitation. We are not aware of any such restriction, and none has been brought to our notice. The learned advocate for the respondent contends that where a party has two alternative remedies and he avails himself of one of them he cannot resort to the other, and that as the appellant has allowed the remand order to be carried out his remedy is an appeal from she ultimate decree in the case, in which he can question the validity of the order of remand. This argument is in our judgment fallacious. If after the order of remand the case is tried by the Court of first instance, it is so tried not at the instance of the party who is prejudiced by the order of remand, but in compliance with that order. It is not in the power of that party to prevent a trial, and it cannot be said that in allowing the case to be tried he resorts to an alternative remedy in respect of the order of remand. It is true that, if he can appeal to the High Court from the final decree made in the case by the lower appellate Court, he may, as held by the Full Bench in Rameshur Singh V/s. Sheo Din Singh,(1889) I.L.R. 12 All. 510 question the legality and correctness of the order of remand, but in such an appeal the propriety of the order of remand cannot be made the sole ground of appeal. This was so held in Sheo Nath Singh V/s. Ram Din Singh,(1895) I.L.R. 18 All. 19. Unless, therefore, he has a substantive ground of appeal to the High Court, he would have no remedy against the order of remand. The doctrine of election of remedies seems to us to have no application.