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Case Number

A.A.O No. 346 of 1949

Advocates

For the Appellant: A. Sundaram Iyer, S. Ramachandra Iyer, Advocates.

Judges

Chandra Reddi, J.

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Smart Summary

Comprehensive Summary of the Provided Opinion

Factual and Procedural Background

This appeal challenges an order of the Subordinate Judge of Vellore remanding the case to the trial Court. The underlying suit was instituted by the appellant for ejectment of the respondents from properties that the appellant purchased at a Court auction sale on 7-12-1944 (lot No. 2, purchased for Rs. 450), after taking delivery of those properties.

The factual matrix begins with O.S. No. 71 of 1927, filed by one Varadarajan in the Sub Court, Vellore, for partition of family properties and separate possession against two persons noted in the text as "???" and Kaniappan. A preliminary decree was passed; on appeal a stay of final decree proceedings was obtained on the condition that the judgment-debtors furnish security for Rs. 12,000. In pursuance of that order the judgment-debtors (described variously in the text as "???" and Veerasami) provided the suit properties as security along with a third-party security.

Subsequently, the appeal was dismissed and the stay dissolved. On taking accounts the judgment-debtors were found liable to pay Rs. 25,000, and a decree for that amount followed in addition to the decree for partition. In execution of that decree the properties (including the B-schedule properties) were put up for sale; the appellant purchased the properties comprised in lot No. 2 at the auction on 7-12-1944 and took possession.

The present suit by the auction purchaser (the appellant) alleged that after he took possession the respondents trespassed the properties. The respondents' principal defence was that title vested in them by a sale deed dated 6-7-1932 from Kaniappan (whose separate properties they alleged the properties to be) and that, alternatively, they had perfected title by adverse possession. The trial Court rejected that defence and decreed the plaintiff's suit.

On appeal from the trial Court's decree, the learned Subordinate Judge remanded the case to the trial Court for the purpose of taking "full evidence" on a particular evidentiary lacuna concerning whether the surety's son had paid Rs. 12,000 and the consequences of such payment for the validity or confirmation of the sale. The plaintiff (appellant) challenged that remand order in the present appeal to this Court.

Legal Issues Presented

Whether the learned Subordinate Judge had jurisdiction to remand the case to the trial Court under Order 41, Rule 23 of the Civil Procedure Code (as amended in Madras), when the appellate court had not concluded that the trial Court's decision was wrong and ought to be set aside.
Whether an appellate Court possesses an inherent (residuary) jurisdiction to remit/remand a case to the trial Court apart from the express provisions of Order 41, Rule 23 (argument advanced by the respondent).
Whether the consent of the advocate for a party can cure an otherwise illegal remand order (raised by respondent's counsel in support of the remand).

Arguments of the Parties

Appellant's Arguments (Mr. Ramachandra Iyer)

The remand order of the lower appellate Court is illegal and contrary to the provisions of Order 41, Rule 23 of the CPC (Madras amendment).
The Subordinate Judge acted without jurisdiction in remanding the case because he did not come to the conclusion that the trial Court's decision was wrong and ought to be set aside; remand under Or. 41 R. 23 is permissible only when the appellate Court reaches that conclusion.
Reliance was placed on two decisions of this Court: Agneswaraswami Devastanam v. Govinda Pandithan (1948-2 Mad LJ 413) and Ariangavu Pillai v. Nallamangai Ammal (1950-2 Mad LJ 370) to support the proposition that remand is permissible only when the appellate Court finds it necessary to set aside the decree on material before it.

Respondent's Arguments (Mr. Sundara Iyer)

An appellate Court has inherent jurisdiction to remand a case even apart from the explicit provisions of Order 41, Rule 23 of the CPC; reliance was placed on Radhakrishna Rao v. Venkat Rao (48 Mad 713) and Mohammad Maracayar v. Rangaswami Naidu (18 Mad LW 515) for the proposition that the power to remit inheres in the appellate Court (though to be cautiously exercised).
As an alternative ground of support for the remand order, it was contended that the consent of the advocate for the appellant had been obtained for the course adopted by the lower appellate Court, and that consent could cure any illegality in the remand order (reliance placed on Manager of the Court of Wards, Kalahasti Estate v. Ramasami Reddi, 28 Mad 437).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Agneswaraswami Devastanam v. Govinda Pandithan, 1948-2 Mad LJ 413	Holds that an appellate Court can remand a case to the trial Court only when it finds it necessary to set aside the decree on the material placed before it.	The Court expressed agreement with this view and relied on it to conclude that a remand made without concluding the trial Court's decision was wrong is illegal.
Ariangavu Pillai v. Nallamangai Ammal, 1950-2 Mad LJ 370	Same principle as above: remand permissible only when appellate Court finds it necessary to set aside the decree on the material before it.	The Court agreed with the ruling and treated it as supporting the proposition that the lower appellate Court's remand (without setting aside the decree) was impermissible.
Radhakrishna Rao v. Venkat Rao, 48 Mad 713	Considered whether an order under appeal was made under O.41 R.23 or under Section 151 CPC; held that where made under Section 151, no appeal lay against the order.	The respondent relied upon this decision to support inherent jurisdiction. The Court noted the decision but treated it as distinguishable and not determinative of the present question given the Madras amendment to O.41 R.23.
Mohammad Maracayar v. Rangaswami Naidu, 18 Mad LW 515	Odgers J. observed that the power to remand inhered permanently in an appellate Court, though it ought to be very cautiously exercised.	The Court acknowledged this view but stated that, given the Madras amendment to O.41 R.23, it is unnecessary to rely on a residuary inherent power; the Court held the remanding power is now governed and limited by the amended rule.
Manager of the Court of Wards, Kalahasti Estate v. Ramasami Reddi, 28 Mad 437	Relied upon for the proposition that consent of parties may cure an otherwise illegal order.	The Court observed that it was unnecessary to decide this question because the lower Court did not purport to act on consent; therefore the Court did not base its decision on that precedent.

Court's Reasoning and Analysis

The Court began by examining the express text of Order 41, Rule 23 (as amended in Madras), which the opinion quotes in full. The quoted rule authorizes remand only in specific circumstances:

“Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, or where the Appellate Court in reversing or setting aside the decree under appeal considers it necessary in the interests of justice to remand the case the Appellate Court may by order remand the case ...” (text quoted in the opinion)

From this rule the Court distilled the legal principle that an appellate Court may remand in the interests of justice only when it finds it necessary to reverse or set aside the decree for justifiable reasons. Thus to justify a remand, the conditions expressly specified in Order 41, Rule 23 must be satisfied.

Applying this rule to the facts, the Court found that the Subordinate Judge remanded the case not because he concluded the trial Court's decision was wrong on the merits and ought to be set aside, but because he considered there was a lacuna in the evidence concerning whether the surety's son had paid Rs. 12,000 and whether that payment affected the validity or confirmation of the sale. The appellate judge's stated reason was that "it is better to send back the case to the trial Court for the purpose of taking full evidence" on that point.

The Court concluded that such a course is impermissible under Order 41, Rule 23. The remand in the present case was not preceded by any finding that the trial Court's decision was wrong; moreover, there was no foundation for the particular issue in the pleadings or the admissions in evidence — the contention about the surety's payment had not been pleaded, no issue had been raised, and no evidence bearing on it had been led. The Court therefore held that the remand was made without fulfilling the conditions prescribed by the rule.

Addressing the respondent's argument of inherent jurisdiction, the Court reviewed earlier authorities invoked by counsel. While noting some older decisions that recognized a residuary remanding power, the Court held that after the Madras amendment to Order 41, Rule 23 it cannot be said that appellate Courts retain a residuary power to remand apart from the statute. Any inherent power to remand is, in the Court's view, embodied in the amended rule and is subject to its limits — namely that the appellate Court must conclude that the decree should be set aside before remanding in the interests of justice.

The Court further observed that even if consent could in some circumstances cure an illegality, the present remand order was not made on the basis of consent (the learned Judge did not purport to act on consent), and therefore the consent argument need not be decided in the present judgement.

On these bases the Court found the remand order legally unsustainable and proceeded to set it aside. The Court nevertheless permitted the respondent (defendant) to apply for amendment of the written statement if he considered it necessary; such an application would be considered by the lower appellate Court on the merits.

Holding and Implications

Core Holding: The appellate Court set aside the remand order of the Subordinate Judge. The remand was held to be illegal because it was not made in accordance with Order 41, Rule 23 of the CPC (Madras amendment); the lower appellate Court had not concluded that the trial Court's decree was wrong and ought to be set aside before remanding.

Direct Consequences and Directions:

The order of the lower appellate Court remanding the suit is set aside ("Order set aside").
A.S. No. 46 of 1948 (the appeal) is sent back to the lower appellate Court for disposal on the merits.
The defendant-respondent is permitted to apply for amendment of the written statement; any such application will be considered by the lower appellate Court on its merits.
Having regard to the circumstances, the Court directed that each party shall bear his own costs.

The opinion does not purport to establish or announce any broader new precedent beyond its interpretation and application of Order 41, Rule 23 as amended; its immediate effect is the setting aside of the remand order and remittance of the matter to the lower appellate Court for disposal on the merits.

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Thirumalaiswamy Mudali v. Periasami Mudali And Another

JUDGMENT

1. This appeal is against the order of the Subordinate Judge of Vellore remanding the case to the trial Court. The suit which has given rise to this appeal was instituted by the appellant herein for ejecting the respondents from the suit properties which were purchased by him at a Court auction sale on 7-12-1944. A few material facts ma usefully be stated here: One Varadarajan filed O.S No. 71 of 1927 in the Sub Court, Vellore for partition of the family properties and for separate possession of his share against two persons ??? and Kaniappan. A preliminary decree was passed by the trial Court and in appeal against that decree a stay of final decree proceedings was obtained of condition that the judgment debtors should ??? security for a sum of Rs. 12000. In pursuance of that order the judgment-debtors, that is, ??? and Veerasami furnished the suit properties as security in addition to a third party security. Ultimately the appeal was dismissed and stay dis solved. On taking accounts it was found that the judgment-debtors were liable to pay the decree holder a sum of Rs. 25000 and a decree followed for this amount, besides the decree for partition. In execution of this decree, the suit properties along with other properties were brought to sale and the Court auction the appellant purchased properties covered by lot No. 2 for a sum of Rs. 450 on 7-12-1944 and took delivery of those properties. The present suit which has given rise to this appeal was instituted by the Court auction purchaser, i.e, the appellant herein on the allegation that subsequent to his taking possession of the suit properties the respondents herein trespassed them. The main defence to the suit was that title to these properties vested in the defendants by virtu of a sale deed dated 6-7-1932 from Kaniappan whose separate properties they were and that in an event the defendants perfected their title thereto by adverse possession. Rejecting the defence the trial Court decreed the suit.

2. On appeal against this decree and judgment of the trial Court the learned Subordinate Judge remanded the case to the trial Court for the purpose of taking full evidence in the case.

3. In the words of the learned Subordinate Judge the reasons for the remand are:

“There is no clear proof before me of the manner in which the suit properties came to be sold on the manner in which full satisfaction of the decree came to be entered. It has been mentioned to me at the Bar that the surety's son paid Rs. 12000 and got his properties released. If that is true, the entire amount secured under Ex. P4 having been paid, the B schedule properties should not have been sold and even if the sal had been held before the payment the sale should not have been confirmed. As there is lacuna in the evidence with reference to this portion of the case, in my opinion, it is better to send back the case to the trial Court for the purpose of takin full evidence on this matter”.

4. The plaintiff who is aggrieved by this order has come up in appeal to this Court. Mr. Ramachandra Iyer for the appellant contends in supped of the appeal that the order of remand passed by the lower appellate Court is illegal as it is contrary to the provisions of Or. 41 R. 23 of the CPC. He argues the lower Court acted without jurisdiction in remanding the case without coming to the conclusion that the decision of the trial Court is wrong and that it ought to be set aside. In support of his contention he relies upon two decisions of this Court reported in ‘Agneswaraswami Devastanam v. Govinda Pandithan’, 1948-2 Mad LJ 413 and ‘Ariangavu Pillai v. Nallamangai Ammal’, 1950-2 Mad LJ 370. There seems to be considerable force in the argument of Mr. Ramachandra Iyer. The power of an appellate Court to remand is contained in Or. 41 R. 23 as amended in Madras.

“Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, or where the Appellate Court in reversing or setting aside the decree under appeal considers it necessary in the interests of justice to remand the case the Appellate Court may by order remand the case and may further direct what issue or issues shall be tried in the case so remanded and shall send copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit and the evidence, if any, recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand”.

5. It is seen that this rule lays down the circumstances under which an appellate Court can remand a case to the trial Court. So, to justify an order of remand, the conditions specified therein should be fulfilled. It is open to the appellate Court to remand the case to the trial Court in the interests of justice only when it finds it necessary to reverse the decree for justifiable reasons.

6. In the present case the order of remand is made not because the Subordinate Judge, was of opinion that the decision of the trial Court is wrong on merits and ought to be set aside and the interests of justice required that the suit should be re-heard but because it was his view that it was better to send the case back to the trial Court for the purpose of taking full evidence “as there is lacuna in the evidence with reference to this portion of the case”. I do not think this is permissible under the provisions of Or. 41 R. 23 of the CPC. It may also be noted that there is no basis either in the pleadings or in evidence for the case which, the learned Judge thought required elucidation. The plea that a sale of the judgment-debtor's property in enforcing the security could not be validly held after the third party surety had deposited the amount of the security bond was deposited was not put forward in the written statement, nor was any issue raised about it, nor any evidence bearing on that question let in. No attempt seems to have been made even in the lower appellate Court to put forward that contention and substantiate it.

7. In this context, two rulings of this Court were cited by Mr. Ramachandra Iyer for the appellant. It has been laid down by Horwill J. both in ‘Agneswaraswami Devastanam v. Govinda Pandithan’, 1948-2 Mad LJ 413 and ‘Ariangavu Pillai v. Nallamangaiammar, 1950-2 M.L.J 370 that the Court of appeal can remand a case to the trial Court Only when it finds it necessary to set aside the decree on the material placed before it. I express my agreement with the view taken by the learned Judge in both the decisions. It follows that an order of remand made without coming to the conclusion that the decision of the trial Court is wrong and is illegal and has to be set aside.

8. Mr. Sundara Iyer the learned counsel for the respondent maintained that an appellate Court has got inherent jurisdiction to remand a case even apart from the provisions of Or. 41 R. 23 of the CPC and in support of this he has referred me to a decision of a Bench of this Court reported in ‘Radhakrishna Rao v. Venkat Rao’, 48 Mad 713. There the question that arose for consideration was whether the order under appeal was made under O. 41 R. 23 of the CPC or under Section 151 of the CPC and whether the appeal was competent. The learned Judges held that no appeal lay against that order as it was one made under Section 151 of the CPC

9. Another decision of this Court relied upon by Mr. Sundara Iyer is ‘Mohammad Maracayar v. Rangaswami Naidu’, 18 Mad LW 515 where Odgers J. observed that the power to remand inhered permanently in an appellate Court though it ought to be very cautiously exercised. Mr. Ramachandra Iyer has invited my attention to cases which have taken a contrary view but it is unnecessary for me to consider this question any further having regard to the Madras amendment to Or. 41 R. 23 of the CPC I do not think that after this amendment it could be said that there is any residuary power in the Appellate Court to remand a case apart from the provisions of Or. 41 R. 23. In my view the inherent power of the Court to remand a case is embodied in Or. 41 R. 23 and that power is prescribed with certain limits namely that the Court can remand a case in the interests of justice only when it comes to the conclusion that it is necessary to set aside the decree. It is well settled that a Court cannot exercise inherent jurisdiction in any case for which another procedure is laid down specifically in the Code. Assuming this contention of Mr. Sundara Iyer to be correct an appellate Court cannot exercise that inherent jurisdiction arbitrarily. For the aforesaid reasons the order of the lower appellate Court remanding the suit cannot be sustained. Mr. Sundaram Iyer next attempted to support the order of the lower Court on the ground that the consent of the advocate for the appellant herein was obtained for the course adopted by the lower appellate Court. He maintained that even if the lower appellate Court has violated the mandatory provisions of Or. 41 R. 23 of the CPC still the consent of the parties would cure it as it cannot be said to be an order without jurisdiction but that at the worst it is only an illegality. In support of the contention that the order of remand though illegal can be cured by the consent of the parties he relied on the ‘Manager of the Court of Wards, Kalahasti Estate v. Ramasami Reddi’, 28 Mad 437. It is not necessary for me to go into this question in view of the fact that the learned Judge does not purport to act on the consent of the parties. As I have already stated the learned Judge thought, that as there was a lacuna, in the case in the interests of justice the case should be remanded to the trial Court for the purpose of taking full evidence on the matter. In these circumstances I think the order of the lower Court remanding the case to the trial Court must be set aside. But it does not preclude the defendant-respondent herein from applying for such amendment of the written statement as he thinks necessary which will be considered by the lower appellate Court on the merits of that application. The order of the lower appellate court is set aside and A.S No. 46 of 1948 is sent back to the lower appellate Court for disposal on the merits. Having regard to the circumstances of the case I direct each party to bear his own costs.

C.R.K/K.S

10. Order set aside.

Thirumalaiswamy Mudali v. Periasami Mudali And Another

Comprehensive Summary of the Provided Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments (Mr. Ramachandra Iyer)

Respondent's Arguments (Mr. Sundara Iyer)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Thirumalaiswamy Mudali v. Periasami Mudali And Another

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