Decided on January 18,1901



- (1.) This appeal arises out of a suit brought by the plaintiff-appellant to recover possession of certain immoveable property.
(2.) The first Court gave the plaintiff a decree. On appeal by the defendant No. 1 the Lower Appellate Court held that the first Court's judgment was based upon an admission of the defendant which could be explained, if a certain question of fact, namely, what was the position of the river Padma at a certain date, was correctly determined, and as that question the Lower Appellate Court found had not been properly determined, it remanded the case to the first Court. But instead of remanding it under Section 566 of the Civil Procedure Code, as it ought to have done, it made its remand order under Section 562 of the Code, after setting aside the decree of the first Court, and it directed that Court to decide the suit itself. No appeal was preferred against this erroneous remand order, although an appeal could have been preferred under Clause 28 of Section 588 of the Code. After remand the case was retried by the first Court, and a decree was made in favour of the plaintiff, but not a decree in full as had been originally granted to him. The plaintiff was satisfied with that partial decree, but the defendant again preferred an appeal, and upon that appeal the Lower Appellate Court modified the decree of the first Court and gave the plaintiff something less than what the first Court on the second occasion had given him. Against the last-mentioned decree of the Lower Appellate Court the plaintiff has preferred this second appeal, and it is contended on his behalf, first, that as the remand was in contravention of the provisions of Secs.562 and 566 of the Civil P. C., it and all subsequent proceedings should be treated as a nullity and the case sent back to the Lower Appellate Court in order that it may try, according to law, the original appeal that had been preferred against the first decree of the first Court; and secondly, it is contended that even if the order of remand be not treated as an absolute nullity and void for want of jurisdiction, and if Section 578 of the Code of Civil Procedure be applicable to this case, still the remand order and all subsequent proceedings ought to be set aside on the ground of the error in making that order having affected the merits of the ease.
(3.) A preliminary question may arise for consideration, the question, namely, whether it is open to the appellant to raise the abovementioned objections now, he not having preferred any appeal against the remand order under Clause 28 of Section 588 of the Civil P. C.. Having regard to the provisions of Section 591 of the Code, and the cases of Maharajah Moheshur Singh V/s. The Bengal Government (1859) 7 M00. I.A. 283 and Savitri V/s. Ramji (1889) I.L.R. 14 Bom. 232 we are of opinion that the preliminary question ought to be answered in favour of the appellant. That being so, let us now see how far the two contentions urged on his behalf are well sustained.;

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