S VENKATRAMA AIYAR Vs. UNNAMALAI AMMAL

JUDGEMENT

(1.) This is an appeal by the plaintiff against an order of the District Judge of Vellore, dated the 5 March, 1946, remanding the suit for fresh disposal on two further issues framed with permission to the District Munsiff to admit fresh evidence at his discretion. The entire records which have been called for to clear up some doubtful points show that the suit was dismissed on 3 July, 1946, after a fresh hearing in compliance with the remand order, and at that fresh hearing the appellant who appeared through an advocate took the suit to a conclusion on the basis of the remand order without in any way objecting to it. The plaintiff filed this civil miscellaneous appeal against the order of remand on 4 September,1946, i.e., nearly two months after the final disposal of the suit. He has also filed an appeal before the District Judge against the ultimate dismissal of his suit.

(2.) Without going into the merits I think that a preliminary objection taken to the maintainability of this appeal must be upheld. It is conceded that it was filed in this Court in time, there being a long delay in the grant of a copy. The appellant however subsequent to the remand order did nothing whatsoever to signify to the learned District Judge his intention of appealing against the remand order or to apply to him for stay of further proceedings. Nor did he make any such application to this Court. He obviously took his chance of success or failure in the District Munsiff's Court on the basis of the remand order. Having failed there, he now seeks to undermine the remand order itself in this appeal. An appeal against a remand order is provided for by Order XLI, Rule 23, Civil Procedure Code, and as it was admittedly filed in time Mr. Rangaswami for the appellant urges that it is maintainable. He relies on a Bench decision of this Court in Lakshmi V/s. Manidevi , in which the point which fell for direct decision was whether an appeal against a preliminary order in execution could be filed even after the date of the final order which merely carried out and was consequential to the preliminary order. No appeal had been filed against the final order itself. Sundara Ayyar and Phillips, JJ., held that such an appeal could be filed and made observations by way of analogy to the effect that an appeal against an order of remand could also be filed even after the date of the final decree consequential on remand. I have perused this decision very carefully and do not consider myself bound by all the observations therein so far as remand orders are concerned which did not fall directly for decision. Following that decision I should have had no hesitation at all in holding this appeal to be maintainable, although filed after the final decree consequent on remand, had the appellant signified his intention of appealing against the order of remand by applying for stay and had stay been refused?a most unlikely contingency. He did nothing of the kind and submitted himself to the scope of the remand order without making any protest.

(3.) No direct Madras decision on this point has been placed before me. There are however a number of decisions of the Calcutta High Court which have clearly held that such an appeal is not maintainable if the appellant raised no objection at or before the re-hearing of the suit. This has become well-established law in the Calcutta High Court in a number of decisions: Madhu Sudan Sen V/s. Kamini Kanta Sen (1905) I.L.R. 32 Cal. 1023, Baikuntha Nath Dey v. Nawab Salimulla Bahadur (1907) 12 C.W.N. 590, <JGN>Mack</JGN> enzie V/s. Narasingh Sahai (1909) I.L.R. 36 Cal. 762, the most recent decision placed before me on the point being Sheik Salim v. Hajira Bibi (1927) I.L.R. 55 Cal. 506. In Madhu Sudan Sen V/s. Kamini Kanta Sen (1905) I.L.R. 32 Cal. 1023, Maclean, C.J., made the following observation: If a party desires to avail himself of the privilege conferred by Section 588 (which corresponds to Section 105, Clause (2), Civil Procedure Code) 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. The first three Calcutta decisions were in fact considered in Lakshmi V/s. Mani Devi , but that decision did not consider or decide the main point which arises for decision in the present civil miscellaneous appeal, viz., the obligation on the appellant who seeks to set aside a remand order to signify his protest against it before the suit on its basis is tried and taken to a conclusion. This point has been specifically decided by Page and Graham, JJ., in Sheik Salim V/s. Hajira Bibi (1927) I.L.R. 55 Cal. 506, where it was clearly held that such an appeal was not maintainable inasmuch as the defendant-appellant did not raise any objection at the re-hearing of the suit on the merits, and no appeal was preferred from the final decree fro the lower appellate Court. In the present case there is only this difference, viz., that the appellant has filed an appeal against the judgment after remand in the District Court and has also simultaneously filed this civil miscellaneous appeal against the order of remand itself.