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1987 Supreme(Ori) 328
IN THE HIGH COURT OF ORISSA
S.C. Mohapatra, J.
HARI NAHAK AND ANOTHER - APPELLANT
Versus
BRUNDABAN DAS AND ANOTHER - RESPONDENT
Misc. Appeal No. 140 of 1984
Decided On : 23-06-1987
P.V. Ramdas and B.K. Panda, for the Appellant; Saktidhar Das and K.N. Sinha, for the Respondent
The appellate court should exercise the power under Order 41, Rule 25, CPC before exercising the power under Order 41, Rule 23-A, CPC.
Headnote:
CIVIL PROCEDURE CODE - ORDER 41, RULE 23-A - REMAND - POWER TO REMAND - EXERCISE OF - SCOPE AND EXTENT - APPELLATE COURT SHOULD FIRST CONSIDER WHETHER IT WOULD HAVE BEEN SUFFICIENT FOR FRAMING AN ISSUE UNDER ORDER 41, RULE 25, CPC AND CALL FOR THE FINDING KEEPING THE APPEAL PENDING WITH IT.
Fact of the Case:
Plaintiffs filed a suit based on title and became successful in the trial court. Defendants preferred an appeal. The appellate court set aside the decree and remanded the matter on two grounds: (1) to depute another survey knowing commissioner, and (2) to examine the aspect of the case with reference to the provisions of the Transfer of Property Act.
Finding of the Court:
The appellate court should have first considered whether it would have been sufficient for framing an issue under Order 41, Rule 25, CPC and call for the finding keeping the appeal pending with it. The appellate court should have exercised the power under Order 41, Rule 25, CPC before exercising the power under Order 41, Rule 23-A, CPC.
Issues: Whether the appellate court was justified in setting aside the decree and remanding the matter under Order 41, Rule 23-A, CPC.
Ratio Decidendi: The power under Order 41, Rule 23-A, CPC is wide in its language, but it should be sparingly used. The appellate court should first consider whether it would have been sufficient for framing an issue under Order 41, Rule 25, CPC and call for the finding keeping the appeal pending with it.
Final Decision: The appeal was allowed and the costs were to abide the result of the First Appeal.
JUDGMENT :
S.C. Mohapatra, J. - Plaintiffs are the Appellants in this appeal under Order 43, Rule 1 (u) against an order of remand of the ?suit by the appellate Court in exercise of the powers under Order 41, Rule 23-A, Civil Procedure Code
2. In two recent decisions of this Court reported in Rushi @ Rushi Behera and Anr. v. Madan Behera and Anr. 61 (1986) C.L T. 30 and in Nishi Swain and Ors. v. Bikala Charan Swain 62 (1986) C.L.T. 68, I have held that the appellate Court is required to assess the evidence and make endeavour to answer the issues. In case there would be difficulty in doing justice by answering the issues or new issues arise which require more evidence, it may consider to exercise the power under Order 41, Rule 25, C. P. C: first: and where it would be satisfied that Order 41. Rule 25, C.P. C. would not solve the problem, it may exercise the power of remand under Order 41, Rule 23-A, Civil Procedure Code,In the present case, the appellate Court has not considered the appeal in that light.
3. The appellate Court has set aside the decree and remanded the matter on two grounds: The first ground is to depute another survey knowing Commissioner. In the suit based on title, Plaintiff became successful in the trial Court and the Defendants preferred appeal Amin, Commissioner was deputed under Order 26, Rule 10, Civil Procedure Code. The Commissioner in his report stated that three, out of the four disputed plots were covered by plot No. 1437. Plot No. 502 was not mentioned to be part plot No. 1437. The appellate Court considered the report of the Commissioner and his evidence as p.w. 1 and came to the conclusion that his evidence brought ambiguity with regard to old plot No. 502 which is not true according to plot No. 1437. The appellate Court observed:
.... Although the said plot is claimed to have been purchased by the pia in tiffs and at the same time, the sale certificate (Ext. H) shows that the said plot was acquired by Defendant No. I, in order to clear this ambiguity, it is necessary to depute a survey knowing commissioner so as to identify the current settlement plot No. 1437 with an area of 69 cents with its corresponding old plot numbers. Obviously, none of the parties had paid any attention to this ambiguity, nor the learned Court below.
When both the parties were satisfied with the evidence the effect of the ambiguity in the commissioner?s report and evidence could have been considered by the appellate Court itself. In case with such ambiguity he would not be able to decide the dispute between the parties judiciously then only the question of deputing another commissioner would arise. When parties did not prefer to challenge the report and no case is made out that due opportunity was not available to them, the appellate Court is not required to give direction for deputing a commissioner.
4. The second ground on which the appellate Court considered the matter to be remitted back is on the following observation:
....1 am afraid, law will not permit a purchaser of mortgaged property to remain silent and claim title over the same after a mortgage decree is obtained and, in execution of the decree, the property is sold in auction and purchased by a third party. This aspect of the case, as already referred to above, has not been thoroughly examined and needs examination with reference to the provisions of the Transfer of Property Act.
This question could have been answered by the appellate Court itself and for this purpose; the suit is not required to be remitted back after setting aside the decree.
5. It is brought to my notice that in the trial Court a copy of the sale, certificate was filed but the same could not be admitted to evidence as the required conditions were not satisfied. In appellate Court the original was filed to be admitted as additional evidence. If the genuineness of such a document was under challenge, an issue to that effect could have been settled and the appellate Court could have exercised the po
