Asok Kumar Ganguly, J. - (1.) The subject-matter of appeal is an order dated 8th October, 2002 passed by the learned Executing Court in Execution Proceeding (G.A. No. 1463 of 2002) arising out of Civil Suit No. 839 of 1990.
(2.) Before this Court, the argument at the initial stage is confined to the question of appealability of the order appealed against. Mr. Bachawat, learned senior Counsel appearing on behalf of the respondent, urged by way of preliminary objection, that the appeal itself is not maintainable and as such it should be dismissed. The basic facts of the case may be noted as under.
(3.) Kanchan Udyog Limited, the respondent herein obtained a decree against the petitioner/appellant McDowell and Company Limited. An appeal was preferred against the said decree by the respondent and there was no stay of the decree but the appeal was being heard by a Division Bench of this Court and ultimately on 18th May, 2000 a Division Bench of this Court allowed the appeal and the Judgment and Decree which was appealed against was set aside. The suit was remanded to the trial Court for fresh trial in the light of the observation made in the judgment of the Appeal Court. Liberty was given to the parties to apply for the amendment of the pleadings before the learned trial Judge. Against the said judgment of the Division Bench, both the parties filed Special Leave Petitions before the Hon'ble Supreme Court. The Hon'ble Supreme Court by an order dated 14.12.2001 disposed of both the appeals in the following terms : "Special leave granted. After hearing the counsel for the parties, we are of the opinion that the High Court instead of setting aside the order of the trial Court and remanding the case for a fresh trial, ought to have decided the appeal before it on merits on the basis of the evidence and the pleadings on record. This the High Court has not done. These appeals are, accordingly, allowed, the impugned judgment dated 18th May, 2000 of the High Court is set aside and the High Court is directed to hear the appeal on merits." ;