S.R.DAS GUPTA,.J. - (1.) AFTER dealing with the facts of the case his Lordship proceeded).
(2.) ONE of the questions which arose during the hearing of this appeal was, whether or not we are competent to determine the validity or the propriety of the order of remand which was made by the Madras High Court as indicated before. In other words, the question which arose was whether after an order had been made under Order 41, Rule 25 of the Code of Civil Procedure by a Bench, another Bench which was subsequently called, upon to dispose of the appeal finally, after the findings of the lower appellate Court have been received can question the validity or propriety of the said order passed under Order 41, Rule 25 of the Code of Civil Procedure. The learned advocate for the Appellants contended before us that the earlier order was an order passed with jurisdiction and cannot be questioned by the subsequent Bench which is called upon to finally dispose of the second appeal. In support of that contention he cited before us a decision of the Calcutta High Court in Kamini Kumar Deb v. Durga Charan Nag AIR 1923 Cal 521. That case was decided by Sir Ashutosh Mookerjee J. and Rankin J. as he then was. Their Lordships expressed the view that as a matter of principle it cannot be affirmed broadly that when an order has been made under Order 41, Rule 25, the Court called upon to determine the appeal finally under Order 41, Rule 26, is competent to treat the order as erroneously made. No doubt, their Lordships proceeded to hold, as pointed out in Bonchari v. Ainoddeen Biswas 24 SWR 137 when an order has been made under Order 41, Rule 25, the appeal remains pending and undisposed on the file of the Court But, their Lordships held, the order, whether rightly or wrongly made, is an order made with jurisdiction and its validity may be attacked on review; but till it has been set aside in the appropriate proceeding, it must be treated as an interlocutory order which is operative in law. In support of that view, their Lordships referred to G.H. Hook v. Administrator -General of Bengal 48 Ind App 187 : AIR 1921 PC 11 and Ramkripal v. Rupkuari 11 Ind App 37 (PC).
(3.) AS against this contention of the learned advocate for the Appellants, the learned advocate for the Respondents cited before us a number of rulings in support of his contention that as the whole matter is before the Bench which has to determine the second appeal finally, the said Bench can go into the question as to whether or not the previous order made under Order 41, Rule 25 was rightly made. The first case which was cited before us in support of this proposition is Hiatunnessa Bibi v. Kailash Chandra 16 CLJ 259. It should be noted at the very outset that the order which was made under Order 41, Rule 25 of the Code of Civil Procedure in the said case was made by a single Judge. The case was later on referred by the said Judge to Division Bench for final disposal. The Division Bench which was presided over by Chief Justice Maclean took the view that they were competent to determine the question as to whether or not the remand order was rightly made. The observation of their Lordships on which the learned advocate for the Respondents relied were as follows: On the other hand, it is contended that the whole case being now before us, it is open to us to decide whether the remand order of Mr. Justice Geidt was justified, the contention being that the District Judge had found, as a fact that upon the question of possession the Plaintiff was not barred, and consequently that the remand order ought not to have been made. We must either decide the whole matter now, or send the case back to Mr. Justice Geidt If we were to decide the appeal on the last finding as to possession by the Judge on the remand and so dispose of the whole case, we should deprive the Plaintiff of his right to appear against the propriety of the remand order. If we send the case back to Mr. justice Geidt it would, I think be open to him to reconsider his order for the remand, but, if he did not do that, but dismissed the suit on the last finding as to possession, the Plaintiff could appeal and challenge the propriety of the remand order. To adopt this circuitous procedure would only entail further and unnecessary cost on the parties: and instead of driving the parties to this course, I think we may deal with the whole matter, as Mr. Justice Geidt has asked us to do and 'treat the matter as if the propriety of the remand order were now before us, as it would be on an appeal from Mr. Justice Geidt.' The Appellant asks us to adopt a course which would have the effect of depriving the Plaintiff of his right of appeal against the remand order: we ought not to do this. I think we must regard the substance, and not the technicalities of the case. (the underlining (here into) is mine). From these observations it appears that their Lordships were treating the matter as if the propriety of the remand order was before them as would be on an appeal from Mr. Justice Geidt. In other words, their Lordships placed themselves into the position of an appellate court hearing an appeal against the said order of Mr. Justice Geidt. Whether or not their Lordships were justified in doing this question with which we are not concerned in this appeal. The fact is that it is on this basis that their Lordships proceeded to determine the question of propriety of the said remand order.;