Perimbra Nayar and Others vs Subrahmanya Pattar and Others

The appellants vakil contends that the lower Appellate Court had no power under Sections 562 and 564 of the CPC to remand the suit for

retrial, and that, therefore, the order appealed against is wrong. It is true the remand in this case was not made on grounds which come within the

language of Section 562, Civil Procedure Code, which provides for a case where there has been a decision upon a preliminary point which is

reversed by the Appellate Court. But we think that, notwithstanding-those sections, an Appellate Court has inherent power-in a case, such as the

present, not only to reverse a decree passed on evidence given by the plaintiff only, the defendant being exparte, but also to direct a retrial of the

case. For it has that power on an appeal against an order passed on an application u/s 108 of the CPC refusing to set aside an exparte decree; and

it can hardly be supposed, therefore, that if on an appeal against such an exparte decree it considers that the decree ought to be set aside and a

retrial had, it has not the same power. We are of opinion, therefore, that the order of the Subordinate Judge which does not purport to be u/s 562

or any other particular section of the CPC was within his powers. The appellant''s vakil sought in the course of his argument to raise the contention

that the Lower Appellate Court could not go into the question whether the exparte, decree of the Munsif ought to be set aside, because the order

of the Munsif made subsequently to his decree and refusing to allow the 2nd defendant''s application u/s 108, Civil Procedure Code, was not

appealed against. But this point was not raised in the grounds of appeal to this Court, nor before the Lower Appellate Court, and we cannot

permit it to be raised now. The appeal, therefore, fails, and is dismissed with costs.