Malayandi Goundan and Another vs Bomman Poosari and Others

The procedure of the Subordinate Judge in remanding the whole suit for a re-trial after framing 4 additional issues, is a procedure not provided

by the CPC and is furthermore one not conducive to the expeditious settlement of the disputes between the parties.

In a case like the present where the first Court has framed a number of issues, arising out of the points on which the parties joined issue in their

pleadings and has decided every one of them in its judgment, it is not open to an Appellate Court to remand the case under Rule 23 of Order. XLI

as though the suit had been decided on a preliminary point vide Sultan Beg v. Chunilal Maturam 46 Ind. Cas. 922. Granting that the appeal ,could

not well be disposed of in the manner provided by Order XLI Rule. 24, owing to the question of the 6th defendant''s hereditary power''s not

having been considered at the trial, the proper course-for the Appellate Court was to frame the essential issues and to call upon the District Munsif

to return findings on them, after allowing each side to adduce additional evidence.

We set aside the order of remand and direct that the case be remitted to the Subordinate Court in order that the appeal may be further dealt

with and disposed of according to law.

The costs of this appeal will abide the result.

A preliminary objection was taken to the admissibility of this appeal on the ground that Order XLIII, Rule 1(a) only provides for an appeal in a

case where the First Court has disposed of thee case on a preliminary point, and as there was no such disposal here, the Subordinate Judge must

have acted in the exercise of his inherent powers u/s 151 of the Code of Civil Procedure. In answer to this objection it is sufficient to refer to the

observations of the learned Chief Justice in his judgment in Full Bench case in Malayath Veetil Raman v. Krishnan Namhudripad 69 Ind. Cas. 828

: M.L.J. 354 : 31 M.L.T. 208 : 16 L.W. 425 : (1922) M.W.N. 589 where lie points out that where the Code expressly limits the power of a

Court, there cannot co-exist an inherent power in that Court to disregard that limitation.

As the Subordinate Judge does not refer to Section 151 in his judgment, we may assume that he was acting under Rule 23 of Order XLI and

not u/s 151.

If he purported to act under a power that he possessed but made a wrong order in the exercise of that power, an appeal will lie. In the present

case, the appellant has also filed a revision petition, so that we have undoubtedly power to make the order as set out above.