SHEOLAL BALMUKUND Vs. JUGAL KISHORE

JUDGEMENT

(1.) THIS is an appeal against a remand order in which a preliminary objection is raised that no appeal lies. It is argued that the only type of remand order which is appealable is one under Order 41, Rule 23, Civil Procedure Code, and that only because it has been made appealable by Order 43, Rule 1(u). It is urged that the order in this case is not covered by these provisions. The facts are these. Defendant 2 Sundarlal and his brothers, defendants 3, 4 and 5, as also one Balmakund, the eldest son of Sundarlal, mortgaged the house in dispute to defendant 1 Sheolal. The latter sued on his mortgage and obtained a final decree for foreclosure. The plaintiffs are the sons and wife of the mortgagor. They sue for a declaration that the mortgagee obtained no right to the house under his decree and that therefore he has no right to dispossess-the plaintiffs. Their case is that the mortgagors (defendants 2 to 5) formed a joint Hindu family which owned various items of property including the house in suit. They partitioned in 1920 and the house in suit was allotted to the shares of Mt. Ratan Kuwar Bai the mother of the mortgagors, and Mt. Rup Kuwar Bai, the wife of defendant 2 Sundarlal. The mortgage was effected in 1922 after this partition, at a time when the mortgagors had no title to the property. Therefore the plaintiffs asked for the declaration mentioned above.

(2.) THEY also stated that they were not bound by the decree in the previous suit because they were not parties to it, and so claimed a right, in the alternative, to redeem. The learned trial Judge found that there was no partition and that the property in suit was the joint family property of the mortgagors (defendants 2 to 5). He-also found that the property being their property they had a right to mortgage it. On the alternative prayer for redemption the learned Judge held that the plaintiffs were bound by the former suit even though they were not parties to it and that therefore they had no right of redemption. The suit was thus dismissed. Other issues, such as fraud, a compromise, etc., were also raised and the learned Judge gave his findings on all except one minor sub-issue which, in his opinion, did not arise. There were in all eight issues, of which 6 were divided up into 15 sub-issues. There were thus 16 separate findings which between them covered all the points raised in the first Court except one minor point about estoppel. The plaintiffs appealed to the lower Appellate Court and the learned Judge there while agreeing with the lower Court's findings on the question of partition held that that involved questions of legal necessity and the like which had not been put in issue and which he thought ought to have been tried. He also held that the plaintiffs, if they failed on the other grounds, had a right to redeem. He therefore remanded the case for a fresh decision. The operative part of his order is in these terms: , I therefore set aside the decree of the lower Court and remand the suit to it for a fresh decision in advertance to the above remarks. The appellants will receive refund of the court-fee paid on the memo of appeal.

(3.) PART of the subject-matter here was the right to redeem, and the lower Appellate Court has decided that in the plaintiffs' favour. Therefore in no case could the plaintiffs have wholly failed. So also on the question of partition the lower Appellate Court upheld the finding that there was no partition and that the family was still joint. All that was left outstanding were questions of legal necessity etc. Therefore the remand order did not cover the whole of the subject-matter of the suit and consequently, according to the provisions in the proviso to Section 13, an order directing refund of the whole of the court-fees paid on appeal was wrong. Whatever the inherent powers of a Court may be, it is clear that it cannot override an express provision of the Legislature under colour of those powers. Therefore whatever power the lower Court may have thought it was invoking, this part of the order at any rate was wrong.