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Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter.
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AI Drafter - (New and Powerful) ✕ Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter.
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Issues: (i) Whether the appellate court's order remanding the suit for trial on the merits was a decree or a final order appealable to His Majesty in Council under the Civil Procedure Code, 1908.
Analysis: The order under challenge arose from a remand under Order 41 Rule 23 of the Civil Procedure Code, 1908 after reversal of a dismissal on a preliminary point. Such a remand order was treated as an order, not a decree, and Order 43 Rule 1(u) separately recognised it as an appealable order. For appeal to His Majesty in Council under Section 109(a), the controlling test was whether the order finally disposed of the rights of the parties in the suit. An order which leaves the suit alive for determination in the ordinary course does not satisfy that test, even if it decides an important or vital issue.
Conclusion: The remand order was not a final order within Section 109(a) and was not appealable as of right under Section 110.
Final Conclusion: The appeal was held incompetent and could not be entertained, the suit having been remitted for trial on the merits rather than finally determined.
Ratio Decidendi: For purposes of appeal to His Majesty in Council, an order is final only if it finally disposes of the rights of the parties in the suit; a remand order that leaves the suit pending for ordinary trial is not a final order.
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