1927 (7) TMI 3 - HC - Indian Laws

Court Upholds Remand Order; Acceptance Bars Later Challenge

(Sheikh) Salim Versus Hajira Bibi

The High Court dismissed the appeal against an order of remand, emphasizing that challenging the order after the final decree was impermissible. The Court ... - Issues:1. Appeal against an order of remand.2. Validity of appealing against the order of remand after the final decree.3. Interpretation of Section 105, Sub-section (2) of the Code of Civil Procedure, 1908.Analysis:Issue 1: Appeal against an order of remandThe case involved an appeal against an order of remand passed by the learned Subordinate Judge, remitting the case for re-hearing before the Munsif. The plaintiffs initially brought a suit to recover damages for alleged dispossession by the defendant from the land they claimed possession of. The trial Court dismissed the suit on a preliminary issue of lack of established title. The Subordinate Judge reversed this decree, leading to a re-hearing before the Munsif, where the defendant contested the suit on its merits. Subsequently, the defendant appealed to the High Court against the order of remand.Issue 2: Validity of appealing against the order of remand after the final decreeThe respondents raised a preliminary objection to the appeal, arguing that the appellant should have challenged the order of remand before the final disposal of the suit. Citing precedents, the Court held that once the final decree had been passed, challenging the order of remand became impermissible. The Court emphasized that the appellant's acceptance of the proceedings post-remand implied consent, barring a later challenge to the order of remand.Issue 3: Interpretation of Section 105, Sub-section (2) of the Code of Civil Procedure, 1908The appellant contended that the Code of Civil Procedure, 1908, allowed for a direct appeal against an order of remand under Section 105, Sub-section (2). However, the Court held that the amendment did not alter the principle that challenging the order of remand after accepting the subsequent proceedings was impermissible. The Court relied on prior judgments, including Janaki Nath Ray v. Promotha Nath Roy, to support the view that the appellant's failure to appeal against the order of remand during the retrial precluded a later challenge.In conclusion, the Court dismissed the appeal, upholding the preliminary objection and affirming the principle that accepting the outcome of a retrial without challenging the order of remand precludes a later appeal against the remand order.