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TMI Blog1927 (7) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... 1925. The plaintiffs appealed, and by the order under appeal of 13th May 1926 the learned Subordinate Judge reversed the decree of the trial Court, and remitted the case to the trial Court to be re-heard upon the merits. The case having been returned to the trial Court was re-heard on 7th August 1926. It appears that the defendant applied for an adjournment of the case, and that at the retrial the suit was contested by the parties on the merits. On 13th August 1926 the learned Munsif passed a decree in favour of the plaintiffs. Thereafter, on 24th August 1926, the defendant preferred an appeal to this Court from the order of remand which had been passed on 13th May 1926. 2. A preliminary objection to the hearing of the appeal has been ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Basanta Narain Singh [1913] 17 C.W.N. 868. 3. It was contended by the learned vakil' for the appellant that the earlier cases-were distinguishable because under the-previous Code it was permissible to challenge the order of remand on appeal from, the decree passed at the retrial, whereas, under Section 105, Sub-section (2) of the Code of 1908 the only mode in which it is permissible to contest an order of remand is by a direct appeal against the order. It has been held, however, in Janaki Nath Ray's case A.I.R. [1911] 15 C.W.N. 830 that the ratio decidendi of the earlier cases was not affected by the Code of 1908. I agree with the view which was expressed by Chitty and N. Chatterjea, JJ., in that case. Now, in Madhu Sudan Sen v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trary, it appears that he contested the suit at the rehearing on the merits, that in the event a decree was passed against him, and that he has not preferred an appeal therefrom. I do not think that it was open to him, after having taken his chance of succeeding upon the merits at the retrial and when the day had gone against him, to give the go-by to the proceedings which terminated in a decree against him at the retrial, and thereafter to prefer an appeal against the interlocutory order of remand which was the foundation of the jurisdiction of the learned Munsif to rehear the case. A litigant finding himself in a situation such as that in which the appellant was placed must elect whether he will accept or repudiate the validity of the rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded and cannot be allowed to prevail. It is true that a change has been made in Section 105, Civil P.C., but I do not think that the alteration has materially affected the merits of this question. The appellant having accepted the order of remand without exercising the right which he had of appealing against the same, and having submitted to the decision of the Court cannot, it seems to me, be allowed to turn round and say that, despite his failure in the suit, he is still entitled to challenge the order of remand. As regards Sub-section (2), Section 105, which has been relied upon by the learned vakil for the appellant, that sub-section, so far from helping the appellant seems rather to furnish an additional argument against him, since if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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