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Rajasthan High Court, Full Bench
Sarjoo Prosad, C.J., Ranawat & Dave, JJ.
Haridas - Appellant
Versus
Banshidhar - Respondents
D.B. Civil Reference No.2 of 1961
Decided On : October 09, 1961
An order under O. 41, R. 23 is appealable under O. 43, R. (u) and if no appeal is filed therefrom, it cannot be challenged even under sec. 105, Civil Procedure Code, when an appeal from the final decree is made. Thus, the said order of remand has an independent existence and if any person is aggrieved thereby, he has no other alternative but to appeal from it, because if he does not appeal, he will not be heard later on.
The law gives to the person aggrieved by the said order of remand a right to appeal and that right cannot be taken away simply because the final decree is passed either before or after the person files an appeal from the said order. So long as his appeal against the order of remand is within the period of limitation, he has a right to be heard and the courts are also bound to decide that appeal. Such an appeal cannot be dismissed on the mere ground that another appeal is not filed from the final decree which has been passed either before or after the appeal filed against the preliminary decree.
The final decree which is passed by the lower court after the order of remand is in its nature dependent and subordinate to the order of remand, because it is passed as a result of the proceedings directed or controlled by the remand order. If the remand order is set aside, the final decree would also topple down. (Paras 16, 17)
O. 43, R. l(u) simply lays down that an appeal shall lie from an order under R. 23 of O. 41 remanding a case, where an appeal would lie from the decree of the appellate court. It is not laid down that the order remanding a case must in all cases be covered by the provisions of O. 41, R. 23 for an appeal to lie. In other words, if the court expressly passes an order under O. 41, R. 23 remanding a case, an appeal would lie therefrom. The very fact that the court passes an order of remand under O. 41, R. 23 or purports to pass an order thereunder, gives a right of appeal to the aggrieved party and that right cannot be taken away from it. It is true that if a case is not really covered by the provisions of O. 41, R. 23 and if the court makes a wrong reference to it, the aggrieved party may challenge it under S. 105 on the ground that the order did not come within the ambit of 0.41, R. 23. This does not, however, mean that his immediate right to challenge the correctness of that order in an appeal which is specifically provided for the purpose should be taken away. In most of the cases if the aggrieved party waits to raise this contention underused 05, the opposite party would raise an objection that the correctness of the remand order should not be allowed to be disputed, since it was expressly passed under 0.41, R. 23. It is not unlikely that different considerations may weigh with different courts at that stage. At any rate, the very fact that the court expressly refers to O. 41, R. 23 or purports to pass an order of remand thereunder, casts a could on the right of the aggrieved party to contest the correctness of the order under sec. 105 and if a right of appeal is given to him expressly under O, 43, R. i(u), that right cannot be snatched away from him. He has certainly got a right to challenge the correctness of that order at least to the extent that the application of O. 41, R. 23 was wrong and therefore it cannot be said that an appeal against it would not lie.
2. The facts giving rise to it are that Shri Banshidhar and Mannalal plaintiffs filed a suit in the court of the Civil Judge, Udaipur on 9th September, 1948, for dissolution of partnership and rendition of accounts against two defendants, namely, Haridas and Bhanwarlal The plaintiffs case was that the defendants were owners of a firm called "Bhatia-Saree-Stores" and that both of them, together with one Kishanlal Paliwal of Nathdwara, were also trading in tobacco under the) name and style of Rajasthan Tambkhu (Tobacco) Manufacturing Company. On 5th January, 1948, both the plaintiffs and the two defendants entered into a part-nership business and the name of this firm was kept as Rajasthan Tambakhu Company. The share of each one of the plaintiffs was five annas in a rupee while the share of the defendants was jointly five annals in a rupee. A branch of this firm was also started in the name of Banshidhar Mannalal. It was alleged by the plaintiffs that the defendants had committed breaches of the various terms of their agreement. The plaintiffs drew up in the plaint almost a catalogue of several breaches on the part of the defendants but it is not necessary to repeat them here, It would suffice to say that according to the plaintiffs, it was no longer possible for them to continue the partnership and therefore they prayed for its dissolution and rendition of account. The plaintiffs valued their claim at Rs. 5800/-.
3. The defendants admitted the partnership but denied the allegations made against them by the plaintiffs. It was averred by them that the breaches of the terms of agreement were committed by the plaintiffs and not by theme.
4. The trial court framed eight issues and, after recording evidence of the parties, came to the conclusion that the plaintiffs were unable to prove if the defendants had committed breach of agreement. On the contrary, it was found that the transactions on behalf of the partnership were conducted by the plaintiffs and the losses were suffered on account of their conduct. The court passed a preliminary decree on 26th October, 1951, whereby it was declared that the plaintiffs had 2/3rd (r/3rd share each) and the defendants had jointly one-third share in the partnership and that the partnership stood dissolved with effect from 17th August, 1948. The court also ordered the appointment of a receiver and directed him to take charge of the partnership estate and effects, to get in all the outstanding book debts and claims of the partnership and to take accounts of the partnership business.
5. Neither party filed any appeal against the preliminary decree.
6. In pursuance of the said decree, the receiver Shri Roshanlal Champavat submitted his report. The court heard the objections of the parties about that report and then came to the conclusion that there was a total loss of Rs 6552/14/6 in the partnership business and thus each partner was to bear the loss of Rs 2184/4/9. After taking into account the amounts which could be credited to the partners, it came to the conclusion that the defendants were entitled to get Rs 1086/3/6 deposited in the court and that plaintiff Banshidhar was liable to pay Rs. 1078/2/10 to the defendants and Mannalal was liable to pay Rs. 2471/1/4 to the defendants. The final decree was accordingly passed against the plaintiffs on 17th April, 1957.
7. Mannalal plaintiff did not file any appeal against the said decree.
8. Plaintiff Banshidhar alone filed an appeal valued at Rs. 1078/2/10 in the court of the District Judge, Udaipur.
9. It was urged on behalf of the appellant that he had brought a money suit also against the defendants Haridas and Bhanwarlal for the recovery of Rs 3200/- and in that suit the defendants had raised a plea that the money advanced by the plaintiff was not given as a loan, but that it was given to them in consideration of the value of their one-half share in th
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