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Issues:
1. Maintainability of the appeal against the remand order. 2. Applicability of Order XLI, Rule 23 of the Civil Procedure Code. 3. Comparison with Calcutta High Court decisions on the same issue. 4. Analysis of the differences between a preliminary decree in execution and a final decree. 5. Consideration of the appellant's statutory right of appeal. Analysis: The judgment by Mack, J. pertains to an appeal against an order of remand by the District Judge of Vellore. The appellant had taken the suit to a conclusion based on the remand order without objection, leading to its dismissal. The primary issue addressed was the maintainability of the appeal against the remand order. The appellant failed to signify his intention to appeal or apply for a stay of proceedings post the remand order, which led to the dismissal of the suit. The judge highlighted the importance of timely action in such cases, citing Order XLI, Rule 23 of the Civil Procedure Code as a reference point for appeals against remand orders. The judgment delves into the lack of direct Madras decisions on the issue but references several Calcutta High Court judgments that establish the principle that an appeal against a remand order is not maintainable if objections are not raised before or during the re-hearing of the suit. The judge emphasized the need for the appellant to protest against the remand order before the suit is concluded. The comparison with Calcutta decisions, particularly the case of Sheik Salim v. Hajira Bibi (1927), highlighted the significance of raising objections at the appropriate stage in the legal process. Further, the judgment analyzed the differences between a preliminary decree in execution and a final decree arising from Lakshmi v. Mani Devi (1911), emphasizing the need for parties to accept or protest the new basis set by the appellate court after a remand. The judge concluded that the appellant's remedy lay in the lower appellate court, considering the procedural complexities and the need for a streamlined legal process. Lastly, the judgment addressed the appellant's statutory right of appeal, acknowledging the extensive appeal provisions in Indian law. However, it emphasized the importance of exercising these rights judiciously and within reasonable bounds. The appeal was ultimately dismissed, with costs awarded to the respondent and an advocate's fee specified. In conclusion, the judgment provides a detailed analysis of the maintainability of an appeal against a remand order, drawing on legal precedents and procedural considerations to arrive at a decision that upholds the dismissal of the appeal in this case.
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