P L D 1968 Lahore 433 (PLP)

Krishnaswami v. Sankarappa A I R 1935 Mad. 175 and Gadi Neelaveni v. Marappareddigari Narayana Reddi A I R 1920 Mad. 640 ref. Kalika Prasad v. Ajudhia Prasad A I R 1929 All. 421 dissented from. If the finality attached to the order of remand and not to the finding on which it is based, then the legislative provision contain ed in subsection (2) would become nugatory and nullified, and the: higher Courts would be competent to interfere in appeal from all orders of remand, for one can hardly think of a case where the finding may be challenged but the order of remand which is based on that finding should remain operative. Not only the order of remand is final and conclusive but even the findings and the reasoning which the first appellate Court may give in support of the order of remand are also final and conclusive. Moreover even if the appellate Court may not agree with the reasoning that by itself will not help the appellants for the reason that unless the order of remand is set aside, the conclusions based on that finding and reasoning will remain operative against them. Karam Singh v. Vir Singh A I R 1921 Lah. 154; Gokarakonda Audinarayudu v. Surapureddi Mangamma A I R 1943 Mad. 706 and Farzand Ali v. Ekadashi A I R 1923 Oudh 177 ref. Parwaiz Akhtar for Appellant. Mst. Nooran succeeded to the occupancy rights of her son Fattu. She acquired the ownership of the land under the Punjab Tenancy Amendment Act of 1952. On the 24th of September 1960, she sold the land in favour of appellant No.

1. The aliena tion was challenged by the reversioners of the last male‑holder on: the usual grounds that it was without legal necessity and. consideration. The suit was dismissed. In appeal, it was held by the learned Additional District Judge that the widow after acquiring the proprietary rights continued to have a life interest. He, however, remanded the case for the decision of other issues whether the property in dispute was ancestral and also whether the respondent was the reversioner of Fattu deceased.

2. The order of remand was passed under Order XLI, rule 23‑A of the Code of Civil Procedure (Rule 23‑A was added by the Lahore High Court on the 4th of August 1938). This, order was appealable by virtue of the amendment of this rule introduced by the Lahore High Court. The order under rule 23‑A was also made appealable under Order XLIII, rule 1 by the amendment of the Lahore High Court. The appellant, however, did not prefer an appeal. The Civil Judge, after the remand, decreed the suit of the plaintiff‑respondent. The appeal against this order was dismissed by the learned Additional District Judge on the 3rd of September 1966. This is the second appeal.

3. It is argued by the learned counsel for the appellant that the learned Additional District Judge had wrongly held Mst. Nooran, appellant No. 1, had not acquired under the Punjab Tenancy Amendment Act of 1952, the proprietary rights in her‑self of the land in dispute. The question arises whether the appellant can raise this question in this appeal when she had not preferred any appeal against the order of remand. The order of remand is doubtless an interlocutory order because it does not terminate the proceedings. Under the law, before the Code of Civil Procedure of 1908 came into force, such an order could be challenged in an appeal from the final decree though no appeal was preferred against the order itself. Subsection (2) of section 105 was added for the first time in the Code of 1908. It gave finality to the order of remand. If an order of remand is not appealed against, its correctness or propriety cannot be challenged in an appeal from the final decree. Relying on Kalika Prasad v. Ajudhia Prasad (A I R 1929 All. 421) it was argued that subsection (2) of section 105 is no bar for the High Court to refuse to be bound by a remand order when it thinks that it was necessary to do so to prevent an obvious injustice. It was held in that case: But I hold that this Court can under its inherent powers, to prevent an obvious injustice, refuse to be bound by a finding in a remand order of a subordinate Court, even though neither party can question it. It would lead to an impossible situation if by section 105(2) Civil P. C., a High Court were in an appeal from a decree to be debarred from taking on a law point a different view from that taken by the District Judge in an interlocutory order. Section 151 is wide enough to prevent such an impass. "With great respect to the learned Judges, I am unable to agree to the view taken in this judgment. Section 151 cannot be pressed into service in such a case. The Code is exhaustive and, comprehensive and as regards matters for which the Court expressly provides, there is no room for exercise of any additional jurisdiction under section

151. In the matters of appeal, the law is quite clear that if the statute provides for an appeal that is competent only on the grounds recognised by the statute. Under section 151, the Court cannot exercise a right of appeal in a matter which is not recognised by the Code. In the present case, it is expressly prohibited. Section 151 cannot be used to nullify or negative a statutory provision of this statute. A Court, in my opinion, can never resort to its inherent powers under section 151 in order to do something which is contrary to what a statute lays down. The object of section 151 is not to arm the Court with arbitrary powers. It was intended to give an authority to the Court to deal with such problems which may arise from time to time in dealing with a case and which were not within the contemplation of the Legislature and as such it could not provide for the same. In Krishnaswami v: Sankarappa (A I R 1935 Mad. 175) it was held that the Court cannot use its inherent powers to extend the scope of a provision which places limitations on it. The inherent power of the Court should be exercised not capriciously or arbitrarily, but ex debito justitiae on sound general principles and not in conflict with the intentions of the Legislature. It was held in Gad! Neelaveni v. Marappareddigari Narayana Reddi (A I R 1920 Mad. 640) that section 151 of the Code of Civil Procedure "must be construed, not as empowering a Court to exercise powers which it never possessed, but as preserving to it those powers which it has been in the habit of exercising and which by oversight or failure, to specify, have not been particularized in the statute. The section has been introduced for the simple reason that no Code can exhaustively deal with the procedure for exercising every power which a Court of justice is competent to exercise, and the language of the section shows that it should be availed of only where a power which has been exercised has not been provided in the Code." Thus, there is no room for the application of the inherent power where there is not only an express provision in the Cod but also an express provision negativing the claim of the party. In fact, the power under section 151 is intended to supplement the other provisions of the Code, and not to evade or ignore them or to invent a new procedure according to individual sentiments.

4. I am in no doubt that, if an order of remand is made in an appeal, and an appeal is not preferred against that order, it becomes final and conclusive and is not impeachable in any further proceedings. The true effect and meaning of subsec tion (1) of section 105 of the Code is to enable a litigant to agitate all interlocutory orders in so far as they affect the decision on the merits of the case, even though an appeal may not have been preferred from those interlocutory orders. If subsection (1) had stood by itself without subsection (2), then, it is clear that an I order of remand could have been challenged or impeached by a litigant in a higher Court at a later stage, even if he may not have preferred an appeal therefrom. It is quite clear that the intention of the Legislature was to make an exception in the case of an order of remand, whereas other appealable orders can be challenged in appeals in so far as those orders affect the decision on the merits it cannot be so done in the case of an order of remained. The learned counsel, however, contends that the conclusive ness attaches only to the order of remand and not to the finding on which it is based. He argues that though it is not open to the . appellants to challenge the order of remand which was passed in the first appeal by which the trial Court was directed to proceed to determine the issue as to the ancestral nature of the property and the relationship of the appellants, it was still open to them to challenge the finding of the first appellate Court that Mst. Nooran, appellant No. 1, acquired only the limited interest in the ownership which was acquired under Act VII of 1952. I am unable to accept this argument because if the finality attached to the order of remand and not to the finding on which it is based, then the legislative provision contained in subsection (2) would become nugatory and nullified, and the higher Courts would be competent to interfere in appeals from all orders of remand, for. I can hardly think of a case where the finding may be challenged but the order of remand which is based on that finding should remain operative. Not only the order of remand is final and conclusive, but even the findings and the reasoning which the first appellate Court may give in support of the order of remand are also final and conclusive. Moreover, even if the appellate Court may not agree with the reasoning that by itself will not help the appellants for the reason that unless the order of remand is set aside, the conclusions based on that finding and reasoning will remain operative against them. In Karam Singh v. Vir Singh (A I R 1921 Lah. 154) it was held: "With respect, moreover, to the portion in which the plaintiff has been unsuccessful it must be noticed that he is precluded from questioning the decision in any way other than by an appeal against the order of remand. This is clear from the provision of section 105 (2)." In Gokarakonda Audinarayudu v. Surepureddi Mangamma (A I R 1943 Mad. 706) it was held: "Where a case was remanded on the ground that section 47 applied to the facts of the case and no appeal was filed from that order of remand, the parties were precluded from disputing the correctness of the finding that section 47 applied to the facts of the case." In Farzand Ali v. Ekadashi (A I R 1923 Oudh 177) it was held: "Under section 151 of the Code, the Court has no inherent power to allow the appeal against the order of remand where no right of appeal is given by the Code. That section can never be invoked in any case unless a Court has jurisdiction to entertain the case. It cannot be invoked to give this Court jurisdiction if it does not possess it otherwise."

5. The appeal has no merit and is accordingly dismissed in limine. A.H. Appeal dismissed in limine.