Sant Prasad vs Bhawani Prasad and Another

A preliminary objection is taken to the effect that no appeal lies. Under Order XLIII, Rule 5(u), an appeal from an order remanding a case will only lie where an appeal would lie from the decree of the Appellate Court. We have, therefore, to determine whether in the case before us an appeal would lie from a degree by the lower Appellate Court. The suit was one of a Small Cause Court nature and in the suit itself no second appeal would have lain by reason of Section 102 of the Code of Civil Procedure. There has been a consensus of authority in three High Courts; Vide Sri Bullov Bhattacharji v. Baburam Chattapadhya 11 C. 169 : 5 Ind. Dec. 872 as also Shyama Charan Mitter v. Debendra Nath Mukherji 27 C. 484 : 4 C.W.N. 269 : 14 Ind. Dec. 318, Mavula Ammal v. Mavula Maracoir 30 M. 212 : 17 M.L.J. 376 and Narayan Parmmand v. Nagindai Bhaidas 30 B. 113 : 7 Bom. L.R. 641 to the effect that a second appeal will not lie in an execution matter, if a second appeal would not have lain in the suit itself. This decision seems to us a reasonable one and, in the absents of authority to the contrary in this Court, we are prepared to follow it. Holding that no appeal lies. We dismiss this appeal with costs.