Data Ram vs Daulat Ram and others

D.K. Mahajan, J.—A preliminary objection has been raised that no second appeal is competent against an order of remand passed in a case which has come to the lower appellate Court on appeal under Order 43, Rule 1 of the Code of Civil Procedure.

In the present case a compromise was recorded by the trial Court and against the order recording the compromise an appeal was preferred to the lower appellate court under Order 43, rule 1, clause (m) of the Code of Civil Procedure. That appeal was allowed by the learned Additional District Judge, Gurgaon, and he remanded the case to the trial court for further proceedings in accordance with law. Against this order of remand, a second appeal has been preferred to this Court.

The learned counsel for the appellant contends that a second appeal is competent to this Court under Order 43, rule 1, clause (u) of the Code of Civil Procedure. The language of Order 43, rule 1, clause (u) is as follows-

ORDER XLIII

Appeals from Orders

An appeal shall lie from the following orders under the provisions of section 104, namely-

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(u) an order under rule 23 of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court,

* * *

A further appeal would have been competent if an appeal had been to a lower appellate Court against a decree, but no appeal is competent in a case where the appeal to the lower appellate Court is against an order. In this connection, reference may be made to Lala Tara Chand v. Firm Manku Lal Ram CHand1. Therefore, the preliminary objection must prevail and it must be held that no second appeal is competent.

Learned counsel for the appellant then contended that this petition for appeal may be treated as a petition for revision. Even if it is treated as such, the learned counsel has to bring it within the ambit of section 115 of the Code of Civil Procedure, because this Court can only interfere if there is an error of jurisdiction. In the present case, there is no error of jurisdiction. In this view of the matter, no revision petition is competent.

For the reasons recorded above, this appeal fails and dismissed, but there will be no order as to costs.