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2013 Supreme(Mad) 356
Madurai Bench of Madras High Court
G. RAJASURIA, J.
S. Thangappa & Another
Versus
M. Selvaraj & Others
C.R.P.(NPD)(MD)No. 35 of 2013
Decided On : 11-01-2013
For the Petitioners:Ms. N. Krishnaveni, Advocate.
The main legal point established is that once an order of remand passed in the Appeal Suit has been challenged in C.M.A., it is deemed that the order in I.A.No.211 of 2009 is also under challenge in the same CMA.
Headnote:
Order of Remand - Civil Procedure Code - The court held that once an order of remand passed in the Appeal Suit has been challenged in C.M.A., it is deemed that the order in I.A.No.211 of 2009 is also under challenge in the same CMA. The court referred to Order 43, Rule (1A) of CPC to support its decision.
Fact of the Case:
The plaintiff filed an application seeking relief under Order 41 Rule 23(a) r/w Section 151 of CPC. The Lower Court ordered remand of the matter, and a similar order of remand was passed in the Appeal Suit. The revision petitioners filed a revision challenging the order of remand in I.A.No.211 of 2009.
Finding of the Court:
The court found that the order of remand in I.A. is deemed to be one under challenge in the C.M.A. pending before this Court.
Issues: The main issue was whether the order of remand in I.A. was separate from the order of remand passed in the Appeal Suit.
Ratio Decidendi: The court relied on Order 43, Rule (1A) of CPC to establish that the order of remand in I.A. is deemed to be one under challenge in the C.M.A. pending before the Court.
Final Decision: The Civil Revision Petition was disposed of with the finding that the order of remand in I.A. is deemed to be one under challenge in the C.M.A. pending before the Court. No costs were awarded.
1. Heard the learned counsel for the revision petitioners who would echo the heartburns of his clients to the effect that pending the Appeal Suit filed by the plaintiff, the same plaintiff filed an application in I.A.No.211 of 2009 seeking the following relief under Order 41 Rule 23(a) r/w Section 151 of CPC:
“TAMIL”
2. After hearing both the sides, the Lower Court ordered remand of the matter. A similar order of remand was passed in the A.S., and as against it appeal has been filed before this Court in CMA No.472 of 2011 which is pending. In the mean while, since in the Appeal Suit, the matter was remanded as per the said order of remand made in I.A.No.211 of 2009, by way of abundant caution, this revision has also been filed.
3. I could not countenance such a procedure adopted by the revision petitioners. The law is very clear as clarity could be that once an order of remand passed in A.S. has been challenged in C.M.A., it is deemed that the order in I.A.No.211 of 2009 is also under challenge in the same CMA and trying to separate the order of remand passed in the appeal from that of the order of remand passed in the I.A., would amount to separating two sides of a coin. Further, I would like to recollect and recall Order 43, Rule (1A) of CPC, which is extracted hereunder:
“1A. Right to challenge non-appealable orders in appeal against decree.-(1) Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced.
(2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.”
4. The law is so explicit that no more elaboration is required.
5. The Civil Revision Petition is disposed of accordingly with the finding that the order of remand in I.A. is deemed to be one under challenge in the C.M.A. pending before this Court. No costs.
