BIBI QAMRUN Vs. MOHAMMAD ALI SABIR
HIGH COURT OF PATNA
MST. BIBI QAMRUN
MOHAMMAD ALI SABIR
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Lakshmikanta Jha, C.J. -
(1.) This second appeal arises out of a suit for recovery of possession of certain land conveyed to the plaintiff under a sale-deed. One of the points in controversy in this suit was that title could not pass without payment of the consideration. The trial court accepted the contention of the defendants and held that consideration not having been paid title did not pass to the plaintiff, and in that view of the matter it dismissed the plaintiff's suit. There was an appeal to the court below and by consent of the parties it remanded the case directing the trial court to decide the suit in accordance with certain directions given in its judgment. The present appeal is directed against this order of remand.
(2.) In my view, the appeal is not maintainable. The right of appeal is a creature of statute. Every decree is appealable and so also certain orders have been made appealable under Order 43. Rule 1. Code of Civil Procedure. It is conceded that the order passed by the Court of appeal below is not one passed under Order 41, Rule 23, Code of Civil Procedure. Obviously, the order was passed in exercise of the inherent powers of the court under Section 151. Code of Civil Procedure; and as such no appeal lies under Order 43. Rule 1. The contention of the learned Counsel for the appellants is that this order may he split up into two parts (I) a decree, and (2) a direction. This contention, in my view, has no substance. There is no final adjudication of the rights of the parties by the order under appeal. Therefore, this appeal cannot be treated as an appeal from a decree. If the order has been passed, as I have already said, under Section 151, then no appeal lies. There is a clear authority in support of this view in 'RAGHUNANDAN SINGH v. JADUNANDAN SINGH', 3 Pat L J 253. A similar contention was raised before a Division Bench of this Court in 'PERMANAND KUMAR v. BHON LOHAR', G Pat 160 and the argument that an order can be split up into two, one amounting to a decree and the other amounting to an order, was repelled; and, if I may say so, rightly, and I respectfully agree with that view. I am clearly of the opinion that the present case is fully covered by the authority in 'PARMANAND'S CASE', 6 Pat 160. Therefore, the appeal cannot be entertained.
(3.) The next question is whether the order can be interfered with under Section 115 of the Code of Civil Procedure. I think, there is no error of jurisdiction. The court of appeal below had a right to make a remand, and if in the exercise of its power as an appellate court, it made the remand, it cannot be said to have erred in the exercise of its jurisdiction.;
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