Sri Sri Sushilamala Patta Mahadevi vs Joya Deman Sumantho

Pandrang Row, J.—In view of the Full Bench decision reported in Raman Nayar v. Krishnan 1922 Mad. 505, it must be held that the decision of the first Court in these suits was on preliminary points as several issues remained undecided by that Court. The remand by the appellate Court of these suits must therefore be deemed to fall within the purview of Order 41, Rule 23, Civil P.C. The fact that the appellate Court purported to remand the suits u/s 151, Civil P.C., is not conclusive. If as s matter of fact the remand can be deemed to have been on any of the grounds mentioned in Order 41, Rule 23. Civil P.C. the appellant is entitled to a refund certificate u/s 13, Court-fees Act. The appellate Court in refusing to grant refund certificates in these cases has acted on the erroneous view that the remand was u/s 151, Civil P.C., and that in such a case it had no power at all, not even inherent power, to grant refund certificates. The order of the appellate Court is set aside and the lower Court is directed to grant refund certificates to the appellant in all the connected appeals. There will be no order as to the costs of this petition.