D. Jageshar Jha and Another vs Mahtab Singh and Others

Das, J.—In my opinion no appeal lies. The Court of first instance decided all the issues in the case. The matter went up in appeal to the learned Subordinate Judge. He took the view that the case was not properly decided by the learned Munsif and he set aside the judgment and remanded the case for re-trial and gave liberty to the parties to adduce certain additional evidence. An appeal has now been brought to this Court against the order of the learned Subordinate Judge.

It is quite clear that the remand was not under the provisions of Order XLI, Rule 23 of the Code. The C.P.C. gives the aggrieved party the right to appeal from an order of remand under Order XLI, Rule 23; but, as I have said, the suit not having been disposed of by the Court of first instance upon a preliminary point, the remand cannot be regarded as a remand under Order XLI, Rule 23 of the Code. It was obviously a remand under the inherent jurisdiction of the Court, and it follows that there is no right of appeal to this Court. The appellant is, however, not prejudiced. He will have the right to challenge this order when the matter again goes before the learned Subordinate Judge, and if the learned Subordinate Judge decides against him and passes a decree in accordance with his judgment, he will have the right to challenge the order of remand in this Court hereafter.

The appeal is dismissed with costs.

Adami, J.

I agree.