A.S.N. Sheikh Muhammad Maracayar v. Rengasami Naidu

The Officiating, C.J — The order of the Subordinate Judge was not passed under O. 41, R. 23 of the Code of Civil Procedure and no appeal lies under O. 43, R. 1 (a) or any other provision of the Civil Procedure Code.

It is suggested that the appeal petition should be treated as a revision petition under Sect. 115 of the Code of Civil Procedure and the order set aside as one without jurisdiction. It is argued that it was open to the Subordinate Judge to proceed under R. 27 if he thought the plaintiffs had been unfairly treated and not given a reasonable opportunity to produce their evidence and that in such a case the appellate Court possessed no inherent power of remand. The judgment of the Full Bench in Ghuznavi v. The Allahabad Bank Ltd.(1), is relied on. Whether an order of remand in such a case should be treated as improper (in the sense that the appellate Court should have taken the course indicated in O. 41, R. 27) or illegal in the sense that it had no jurisdiction to pass it, is a somewhat difficult question. But it seems to me to have been answered in Athappa Chetty v. Ramanatham Chetty(2), to the effect that it is only an improper use of a power legally possessed. I am not prepared to differ in a pure matter of procedure and I am content to follow this decision.

In this view there is no question of jurisdiction on which we could interfere under Sect. 115, Civil Procedure Code.

I would therefore simply dismiss the appeal petition with costs.

Odgers, J.—I agree and I see no reason for reconsidering the view I took in Athappa Chetty v. Ramanatham Chetty, when sitting with Mr. Justice Seshagiri Aiyar. We clearly meant to hold in that case that the power inhered permanently, though it ought to be very cautiously exercised. If that is right it cannot be said in the present treated as a Civil Revision Petition, that the order of the Lower Appellate Court was made without jurisdiction.

K.V.SAppeal dismissed.