Case Note & Summary
The appellant, Nandareddy, filed a Miscellaneous Second Appeal under Order 43 Rule 1(u) of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 14.10.2015 passed by the Senior Civil Judge and JMFC, Malur, in R.A. No.120/2011 (old R.A. No.20/2008). The lower appellate court had allowed the appeal filed by the respondent (defendant in the original suit) and set aside the judgment and decree dated 18.12.2007 passed in O.S. No.72/2001 by the Prl. Civil Judge (Jr.Dn.), Malur, remanding the matter to the trial court to appoint a commissioner in accordance with law and to dispose of the matter expeditiously. The appellant, who was the plaintiff in the original suit, contended that the lower appellate court erred in remanding the case without considering the merits of the appeal. The High Court, after hearing the parties, held that the lower appellate court's order of remand was improper as it did not decide the appeal on its merits. The court observed that the appellate court should have first examined the correctness of the trial court's judgment before ordering a remand. Consequently, the High Court allowed the appeal, set aside the impugned judgment and decree, and remanded the matter back to the lower appellate court for fresh disposal in accordance with law, directing the parties to appear before that court on 29.08.2016.
Headnote
A) Civil Procedure - Remand - Order 43 Rule 1(u) CPC - Lower appellate court allowed appeal and remanded matter for appointment of commissioner without deciding merits - Held that remand order was improper as appellate court should have first determined the correctness of trial court's judgment before ordering remand (Paras 1-2).
Issue of Consideration
Whether the lower appellate court was justified in remanding the matter to the trial court for appointment of a commissioner without considering the merits of the appeal.
Final Decision
Appeal allowed; impugned judgment and decree set aside; matter remanded to lower appellate court for fresh disposal in accordance with law; parties to appear on 29.08.2016.
Law Points
- Order 26 Rule 9 CPC
- Order 43 Rule 1(u) CPC
- Partition Suit
- Remand
- Commissioner Appointment
