TaxTMI 
TaxTMI 
2023 (9) TMI 1695
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....an order dated 18.08.2023 disposing of 'Issue no. 9', as directed in terms of the order dated 08.05.2023 passed in the civil appeal. It is accordingly submitted that the remedy open to the appellant would be to file an appeal against the subsequent order passed by the trial court, and the present appeal against the order of remand is now without any purpose. 5. It is further sought to be argued that in the absence of an appeal being filed against the later order passed by the trial court deciding the issue on which the remand had been made, the said order would remain in force even if the earlier order is set aside, and therefore, it would be an exercise in futility in reversing the earlier order by entertaining the present appeal. 6. Counsel for the appellant has controverted the aforesaid objection by submitting that an appeal against an order of remand, cannot be held to have become redundant with the passing of the consequential order by the trial court in pursuance of the order of remand. It is contended that the right of appeal granted by Order XLIII, Rule 1(u) against an order of remand cannot be taken away or nullified with the passing of the consequential ord....
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....ion where non­filing of such an appeal has the effect of imposing a serious disability on the right of the party concerned from disputing the correctness of the order at a subsequent stage. 13. Order XLIII, Rule 1(u) does not contain any express bar by providing any condition that an order of remand would be appealable only if the case had not been finally determined by the trial court before filing of the appeal or during its pendency. There is also no provision which may lead to an inference that an appeal filed against an order of remand would be rendered infructuous in case the preliminary point on which the remand had been made was disposed of during the pendency of the appeal. 14. The right of appeal and the jurisdiction for the purpose, having been conferred expressly by the statute, cannot be taken away except by express words, or by necessary implication. The Code does not say, in express terms or otherwise, that the appeal against the order of remand would lie only if the point on which the remand had been made, had not been finally determined by the court of first instance, before the appeal is preferred or is heard. 15. The reason why the legislature, in it....
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....on a person aggrieved with the order of remand to appeal from it, and in the absence of doing so, he would be precluded from raising any objection with regard to propriety or correctness of the order at a subsequent stage of litigation. It would, therefore, not be possible to read into the Code any provision to the effect that the passing of a final order pursuant to the remand would constitute a bar either to the institution or the hearing of any appeal against the remand order. 19. An analogy may be drawn with Section 97 of the Code, which provides that where any party aggrieved by a preliminary decree does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. Although, the provisions of Section 97 would have no applicability to the facts of the present case, the analogy would be apt for the reason that the position of an appeal from the order of remand and an appeal from a preliminary decree would be very similar as in both the situations, if the appeal which is provided by the statute, is not preferred, the order or the decree, as the case may be, cannot be challenged at a subsequent stag....
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.... order passed by the trial court consequent to the remand. This would be so also for the reason that the final order which is passed by the trial court after the order of remand is in its nature dependent and subordinate to the order of remand, since it would be consequential to the same and is to be controlled by the terms of the remand order. It would, therefore, follow that if the remand order is set aside, the order passed by the trial court, consequent thereto, would also fall on the ground. 24. As regards the contention sought to be raised by the respondents that the later order passed by the trial court consequent to the remand order having not been appealed against, would remain in force even if the earlier order were to be reversed, and therefore, the present appeal would be of no consequence, it may be observed that the later order passed by the trial court merely carries out the directions of the remand made by the first appellate court, and it cannot in any way be held to have the effect of superseding the said order. The validity of the later order passed by the trial judge would, therefore, depend upon the validity of the earlier order passed by the first appellate....
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....ltantly affect the operation of the final order passed in pursuance of the remand order. 29. It may also be taken note of that the litigant has a statutory right of appeal against the order of remand, and he also has a right to contest the proceedings before the trial court pursuant to the order of remand. The two rights being independent, the exercise of one such right would not constitute a bar to the exercise of the other. It would not be a question of a choice between two alternative rights; rather, it would be the same right that the party concerned may agitate both in the appeal against the remand order and at further stages of the trial consequent to the remand. 30. The right to appeal against the order of remand would not be lost merely because the party concerned has contested the proceedings in the trial court after the remand. It goes without saying that if the order of remand is ultimately reversed on the appeal against it, the subsequent order passed by the trial court, which depends for its validity on the earlier order of remand, would ipso facto cease to have effect. The subsequent proceedings conducted in pursuance of an order of remand would be subordinate a....