Kota Kanakayya and Another vs Kamepalli Lakshmayya and Others

Viswanatha Sastri, J.—Encouraged by a recent decision of Mack J. in S. Venkatrama Aiyar Vs. Unnamalai Ammal and Another, , Mr. V.

Suryanarayana, the learned counsel for the respondents, raised a preliminary objection to the hearing of this appeal against an order of remand

passed by the lower appellate Court under Order 41, Rule 23, Civil P. C. The argument is that the order of remand has been carried out and the

suit decided and the remedy of the defendants, here appellants, is only by way of an appeal from the final decree. It is urged that this appeal against

the order of remand has to be dismissed on that ground as was done by Mack J. in the case above cited and for the same reasons. While I

appreciate the vigour of the judgment of my learned brother I venture, with respect, to think that, as an ex- pression of legal principle, it is far from

convincing. As I differ from his judgment it is my duty and I shall endeavour to state as clearly as I can, the reasons which have compelled me to

come to a different conclusion.

Under the Civil P. C. of 1882, there waa no provision for the passing of a preliminary decree and no adjudication came within the defi-nition of

a decree unless it decided the suit. Sections 2, Civil P. C. of 1908, provided for the passing of a preliminary decree which determined the rights of

parties with regard to all or any of the matters in controversy in the suit though it did not completely dispose of the suit. Section 97 of the Code of

1908 provided that if a party aggrieved by a preliminary decree did not appeal from it, he would be precluded from disputing its correctness in any

appeal which might be preferred from the final decree. Section 562, Civil P. C. of 1882 empowered an appellate Court to remand a suit which

had been disposed of on a preliminary point by the trial Court, if the appellate Court found the decision of the trial Court to be erroneous. Section

588, Clause (28), Civil P. C. of 1882 gave a right of appeal against an order of remand. Under the Code of 1882 it bad been held by Courts that

a party aggrieved by an order of remand could object to its validity in an appeal againnt the final decree though he might have appealed against the

order of remand u/s 688, Clause 28 but had not done so. Subha Sastri v. Balachandra Sastri, 18 Mad. 421. There was also a dissent from this

view in Subbalakshmamma v. Venkatrayudu, 32 Mad. 318: (2 I. C. 625). When the Civil P. C. of 1908 was enacted, the legislature reproduced

with alight variations the old Sections 562 and 588. Clause (28), Civil P. C. of 1882, in Order 41, Rule 33 and Order 43, Rule 1, Clause (u)

respectively, of the new Code, and also added a new provision in Section 105(2) precluding an appellant from taking on an appeal from the final

decree any objection that might have been urged by way of an appeal from an order of remand. The Madras High Court in the exercise of its rule-

making powers amended Order 41, Rule 23, Civil P. C., so as to empower an appellate Court to remand a suit even in a case where the trial

Court had not diapoaed of it on a preliminary point. By the amendment, this Court put an end to the interminable controversy that raged round

orders of remand, whether they were passed under Order 41, Rule 23, Civil P. C., or under the inherent powers of the Court, on the decision of

which point depended the appeal-ability of such orders. Suffice it to say that in Madras all orders of remand are now appealable under Order 43,

Rule 1, Clause (u), Civil P. C., in all cases where an appeal would lie against the decree of the appellate Court. This resume of the history of

legislation has been rendered ne-cessary by the reliance placed by Mack J. on certain decisions of the Calcutta High Court given before the

coming into force of the Civil P. C. of 1908.

The Civil P. C. of 1908 not only gives an aggrieved party a right of appeal against a preliminary decree or an order of remand in a case where

the decree of the appellate Court would have been open to appeal but also im poses this serious disability on a litigant that if be does not prefer an

appeal against the pre-liminary decree or an order of remand, he is thereafter precluded from disputing its correctness in an appeal from the final

decree. There is no provision anywhere in the Code that takes away the right of a party to appeal from a preliminary decree or an order of

remand, if a final decree happens to be passed in the suit before the appeal against the preliminary decree or the order of remand is presented. Nor

is there any provision in the Code that an appeal against a preliminary decree or an order of remand properly presented becomes defunct by the

passing of a final decree pending the appeal. I am unable to accept the dictum of Mack J. that ""it is necessary that these wide privileges of appeal

should be exercised within the limits of reason and practicality"", the limits being, evidently, those prescribed by learned Judges ac-cordirg to their

own notions of what is reasonable or practical. In my opinion, it is not legitimate for a Court to read into the statutory provisions granting a right of

appeal, limitations and disabilities which the legislature has not thought fit to insert. Abrogation of a right of appeal given by statute cannot be

imported by Courts for reasons founded on practical convenience. A right of appeal which is a substantial right conferred by statute, is not to be

put in peril merely because the purpose of granting a right of appeal does not appeal to the predilection of the Court. Mack J. observes that ""the

cycles of appeals, the law permits in India, have (sic) no parallel in the juristic history of any other country."" I am not so sure about this but in any

case, it is a problem for the legislature and as not to be solved by judicial abrogation of rights conferred by statutory enactments.

I proceed to consider the other reasons given in support of his conclusion by Mack J. The teamed Judge observed that he would have

entertained the appeal against the order of re-mand though it was filed after the final decree had been passed ""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."" I am unable, with

respect, to Bee the point of this obser- vation. The learned Judge evidently, meant--indeed it is so stated in his judgment--that the appellant should

have signified to the lower appellate Court his intention of appealing against the order of remand or applied to it for a stay of further proceed ings.

The lower appellate Court was functus officio when it passed the order of remand. There is no provision in the CPC similar to Order 41, Rule 6

em-powering the lower appellate Court to stay the trial of a suit remanded by it. Even in appeals against orders of remand preferred to the High

Court, stay of further trial cannot be bad aa of right. Onerous conditions may be imposed which an appellant might not find it possible to comply

with. The maintainability of an appeal against an order of remand should not in my opinion, be made to depend on the grant or re-fusal of stay of

further trial in the exercise of a Court''s discretion.

Mack J. further holds that if a person wants to avail himself of the privilege of appealing against an order of remand he must do so before the

final decree is passed. If he does not prefer an appeal betimes and obtains an order for stay of trial but submits, without protest, to the trial which

ends in a decree ""he must ba deemed to have accepted the new basis and sub-mitted to a fresh trial on that footing."" Thereafter, it is not open to

him to ""undermine"" the basis of the order of remand by an appeal from that order or from the final decree in the suit. His only remedy is to file an

appeal from the final decree if he has any grievance, against that decree. Bo runs the argument. Order 43, Rule 1, Clause (u) does not say that an

order of remand shall be appealable only if the case had not been finally determined by the trial Court before the date of the filing of the appeal.

Nor does it say that an appeal filed against an order of remand becomes infructuous if a final decree happens to be passed during its pendency. It

is not permissible for a Court to import into the provisions of Order 43, Rule 1, Clause (u) a limitation which is not there found either in express

terms or by necessary implication. It is all the more objectionable to import such a limitation in the face of the stringent provision in Section 105.

Clause (2), Civil P. C., which precludes a party from questioning the propriety of an order of remand except on an appeal preferred against that

order. The result of the Calcutta decisions relied upon by Mack J. as being good law, even under the CPC of 1908, would be that if a party,

without any fault of his own, is unable to appeal against the order of remand before the final decree on remand is passed, be would lose all

opportunity of ever objecting to that order and at the same time be deprived of the eights of appeal expressly conferred by Order 43, Rule 1,

Clause (u), Civil P. C. There might be delay in the grant of certified copies for filing an appeal against an order of remand. The trial Court or the

appellate Court might refuse a stay of trial and the final decree in the suit might happen to be passed before the appeal from the order of remand is

filed or is heard. In my opinion, it is erroneous to hold that the right of appeal given by Order 43, Rule 1 (u) against an order of remand is taken

away or nullified by the passing of a final decree in the suit. An order of remand has an independent existence and is not submerged or dissolved in

the final decree. A separate right of appeal is provided against such an order. Not only is a right of appeal provided by Order 43, Rule 1, Clause

(u) but an obligation is cast by Section 105(2), Civil P. C., upon a person dissatisfied with an order of remand to appeal against it on pain of losing

his right to object to the propriety or the correctness of the order of the findings on which it is baaed in the iater stages of the litigation.

It might happen that a person has no objection to the final decree provided the order of remand was right and his only objection may be to the

order of remand itself. In so far as the final decree is consequential upon or merely carries out the directions contained in the order of remand,

there is no reason why a litigant ehould put himself to the expense and trouble of appealing against the final decree when Order 43, Rule 1, Clause

(u) gives him a right of appeal against the order of remand, especially when in the appeal against the final decree he could not be heard to impugn

the correctness of the order of remand by reason of the bar imposed by Section 105(2), Civil P. C. An appeal against an order of remand or

against a prelimiaary decree, would, if allowed, make an appeal against the final decree on the same grounds quite unnecessary. The further trial

after remand depends on the validity of the order of remand and if that order is set aside on appeal the final decree and indeed, all the proceedings

taken under the remand order, would fall with it. I am aware that the doctrine, that subordinate and dependent decrees come to nothing when the

decree on which they are dependent is set aside, should not be extended so as to operate beyond the different stages of the same suit or

proceeding in view of the decision of the Judicial Committee in Naganna Naidu v. Venkatappayya, 46 Mad. 895: AIR 1993 P. C. 167, But the

final decree passed in pursuance of a preliminary decree or order of remand in the same suit is subordinate to and dependent on the preliminary

decree or the order of remand as the case may be. The appellate Court, if it has seisin of the appeal against a preliminary decree or an order of

remand, has power to reverse or modify it and in this manner and to this extent, has also the power to affect the operation of the final decree

passed in pursuance thereof.

There is only one other aspect of the matter that has to be mentioned. Mack J. following the Calcutta decisions referred to in his judgment holds

that the party affected by an order of remand must make his election as to the remedy he desires to pursue and if instead of appealing forthwith

against the order of remand and applying for stay of trial, he chooses to allow the trial to go on and end in a final decree, he cannot thereafter turn

round and ""undermine"" the order of remand by presenting an appeal against it. I regret my inability to follow this reasoning. There is no question

here of choosing one of two inconsistent remedies. As already stated, the further proceedings under the order of remand might go on in the trial

Court either because a party has not had sufficient time to file an appeal and obtain an order for a stay or because a stay of trial has been refused.

Is it to be said in such a case that the party who attends the further trial of the suit without allowing the case to go for default against him takes his

stand on it and precludes himself from appealing against the order of remand if the final decree happens to be passed? The trial after remand takes

place pursuant to the direction of the appellate Court remanding the case without any reference to the inclinations of the parties. It is news to me

that a person who pays the amount or surrenders possession of the property decreed precludes himself from appealing against the decree and yet

this is what the argument for the respondents comes to. There is no question here of a choice between alternative and inconsistent or mutually

exclusive remedies; the litigant has a right of appeal against an order of remand; he has a right also to contest the proceedings taken in the trial

Court pursuant to the order of remand; these are independent legal rights and the exercise of one such right is no bar to the exercise of the other.

The aggrieved party is not even faced with alternative rights; it is the same right that he wishes to agitate both in the appeal against the order of

remand and at the further stages of the trial after the remand. He has not lost his right to have an appeal against an order of remand merely because

he has contested the litigation in the lower Court after the remand.

I have so far discussed the matter with reference to the language of Section 105, Clause (2) and Order 43, Rule 1, Clause (u), Civil P. C., and

the general principles of law applicable to the case. I now turn to the authorities. In Lakshmi v. Maru- devi, 37 Mad. 29 : A. I. R. 1915 Mad. 197,

it was held by Sundara Aiyar and Phillips JJ., that an appeal against an order of remand could be filed and heard even though a final decree

consequential on the remand order had been passed. The learned Judges pointed out that a right or jurisdiction conferred by statute could not be

taken away or out down except by ex-press words or by necessary implication. They also held that if the order of remand was reversed on the

appeal preferred against it, the subsequent decree or order which depended for its validity on the earlier order of remand would ipso facto cease

to have any force. The previous decisions of this Court as well as three of the four decisions of the Calcutta High Court relied upon by Mack J.,

were all considered by the learned Judges before they arrived at a conclusion contrary to that reached by Mack J. The decision in Lakshmi v.

Marudevi, 37 Mad. 29 : A. I. R. 1915 Mad. 197, was followed foy another Benoh of thia Court in Ramuvien v. Veerappudayan, 37 Mad. 456 :

A. I. R.1914 Mad. 473, where again the learned Judges declined to adopt the view of the Calcutta High Court and held that the right of a party to

prefer an appeal against a preliminary decree was not lost by reason of the passing of a final decree before the appeal was presented. I do not see

any difference between a preliminary decree and an order of remand so far as this question of appealability is concerned. In V. Manickam Pillai

Vs. Mahudam Bathummal and Others, , Wallace J., held in revision u/s 115, Civil P. C., that it was competent to this Court to set aside an order

of the lower Court setting aside the dismissal of a suit for default of appearance of the plaintiff, even though the suit had been tried and decreed by

the trial Court after the date of the order setting aside the dismissal for default. Perhaps I would not have exercised my discretion in the same way

ae the learned Judge in the circumstances of that case. The decision, however, is an authority on the point that where an order is brought before

this Court in revision or appeal, the mere fact that further proceedings have gone on in the Court below and have resulted in a final decree or order

would not stand in the way of this Court interfering in revision or on appaal with the order brought up before it. If the High Court reverses the

order of the lower Court the subsequent proceedings conducted in the trial Court which depend for theic validity on the order which is set aside by

this Court would also cease to have operation or legal effect. In R.A. Arunachala Ayyar Vs. Louis Dreyfus and Co., , Ramesam and Cornish JJ.,

followed Ramuvien v. Veerap-pudayan, 37 Mad. 455 : A. I. R. 1914 Mad. 473, and observed that :

it has always been held in this Court that an appeal against a preliminary order if allowed makes an appeal against a final order on the same

grounds unnecessary though another appeal may have to be filed if it has reference to what happened after the preliminary order was passed.

In Sundaram Chettiar v. Valliammal, 53 Mad. 116 : A. I. R. 1935 Mad. 43 Beasley C. J. and King J. followed the principle of the deci-sions in

Lakshmi v. Marudevi, 37 Mad. 29 : A. i. r. I9i5 Mad 197 and Bapuvien v. Veerapudayan, 87 Mad. 466 : A. I. R. 1914 Mad. 473, and held that

it was competent to a Division Bench of this Court hearing an appeal under Clause 15, Letters Patent, from an order of a single Judge declining to

grant unconditional leave to defend a suit filed under the summary chapter of the Original Side Rules, to grant a stay of execution of the decree

passed pursuant to the order declining to grant unconditional leave to defend. The learned Judges acted on the view that if the order refusing to

grant unconditional leave to defend was found to be erroneous and was set aside on appeal, the result would be to render the decree passed as a

consequence of the refusal of leave to defend ineffective, even though the decree itself had not been appealed against. The decisions of this Court

cited above are binding upon me as they were binding on Mack J. I would have direated the papers in this case to be placed before His Lordship

the Chief Justice for directions as to the case being posted before a Division Bench if I entertained any doubt about the correctness of the previous

decisions of this Court or the legal principles applicable to the case. I follow the previous decisions of thia Court cited above and I regretfully differ

from the ruling of Mack J. in Venkatarama Aiyar v. Unamalai Ammal 1948 2 M. L. J. 401 :A. I. R. 1949 Mad. 377.

The decisions of the Calcutta High Court on some of which Mack J. purported to rely are by no means unanimous in their statement of the

principles underlying their conclusion. In Jatinga Valley Tea Co. v Chera Tea Co. 12 Cal. 45 which was an appeal against an order of remand, the

High Court set aside an order of remand even though the suit had been tried and dismissed after the data of the order of remand. The Court held

that the proceedings taken by the Court of first instance after the remand and pending the hearing of the appeal fell with the reversal of the order of

remand by the High Court, Twenty years later came the decision in Madhusudhan Sen v. Kamini-kanta Sen, 32 Cal.1023 : 9 C. W. N. 895, relied

upon Mack J. The Court held that if a party decided to avail himself of the privilege conferred by Section 588 (28) (corresponding to Order 43,

Rule (l) Clause (u)), in relation to an order of remand, he ought to do so before the final disposal of the suit. It was further held that if the suit was

disposed of, his only remedy was to appeal from the final decree in the suit. The decision in Madhusudhan Sen v. Kaminikanta Sen, 32 Cal. 1023 :

9 C. W. N 895. was also applied by the Calcutta High Court to appeals from pre-liminary decree preferred after the passing of final decree. It is

unnecessary to examine the later Calcutta decisions relied upon by Mack J. in view of the Full Bench decision of five Judges in Taleb Ali and

Another Vs. Abdul Aziz and Others, . holding that an appeal from a preliminary decree was competent even if a final decree had been made be-

fore the appeal was presented. It was further held that it wae unnecessary for a party aggrieved by a preliminary decree to appeal both from that

decree and against the final decree subsequently passed in order to maintain his appeal against the preliminary decree. This decision was perhaps

not brought to the notice of my learned brother. I consider that the same rule should apply to an appeal against an order of remand.

A Full Bench of the Allahabad High Court dissented from the decisions of the Calcutta High Court relied upon by Muck J. and held in Uman

Kunwari v. Jarbandhan, 30 ALL. 479 : 5 A. L. J. 447 , that the fact the suit had been decided by the Court of first instance in compliance with an

order of remand made u/s 562, Civil P. C. (Order 41, Rule 23), was no bar to the filing of an appeal from an order of remand or to the hearing of

such an appeal. In so doing, the learned Judges of the Full Bench followed the opinion of Edge C. J. in Rameshar Singh v. Sheodin Singh, 12 ALL.

510 : 1890 A. W. N. 188 . Yet another Full Bench of the Allahabad High Court took the same view in Kanhaiya Lal and Others Vs. Tirbeni Sahai

and Others, The principle of these decisions is that where an order of remand is appealed against and that order set aside on appeal, the

subsequent proceedings conducted in pursuance of the order of remand are considered to be subordinate and dependent proceedings liable to be

superseded by the reversal of the order of remand which was the subject-matter of appeal before the superior tribunal. In Gurmukh Singh v. Shiv

Ram, 17 Lah. 53 : A. I. R. 1935 Lah. 482, in Wahindunnissa v. Dip Narain, 1 - Pat. L. J. 406: A. I. R. 1916 Pat. 370 , in Basawant Mallappa v.

Kallappa Virbhadrappa, A. I. R. 1938 Bom. 222 ; 175 I. C. 43, and in AIR 1948 56 (Nagpur) , the other High Courts have taken the same view

as this Court in Lakshmi v Marudevi, 37 Mad. 29 : A. I. R. 1915 Mad 197, I am not prepared to disturb this settled rule.

On the merits I am of the opinion that the order of the lower appellate Court is perfectly justified in view of the wide language of Order 41,

Rule 23, Civil P. C. as amended in Madras. Section 123, T. P. Act. requires that a gift of immovable property must be effected by a registered

instrument signed by or on behalf of the doner and attested by at least two witnesses. Seotion 68, Evidence Act, requires that a document required

by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution.

There was an issue raised after the remand as to whether the deed of gift was properly and validly executed. The learned District Munsif was of

the opinion that the deed of gift did not require to be proved by the evidence of any attestor and that the evidence of the donee herself was

sufficient to prove the deed of gift. Evidently this erroneous view of the learned District Munsif influenced the course of the trial and the necessary

evidence required by law was not placed before the Court. It must here be observed that no plea as regards the invalidity of the execution of the

gift deed was raised when the suit was originally tried or on appeal when the order of remand was made. It is only among the issues raised in the

suit after the order of remand that an issue as regards the validity of the gift was framed. In these circumstances it seems to me that the plaintiffs

were misled by the absence of any specific plea in the written statement filed by the defendants, though having regard to the frame of the issue, the

burden was cast upon them of proving the due execution of the gift deed. I hold that the appellate Court was jus-tified in remanding the case for

trial on issue (3) as regards the validity of the execution of the gift deed.

I, therefore, confirm the decision of the lower appellate Court and dismiss this civil mis-cellaneous appeal with costs. No leave.