Civil Procedure Code, 1908, Order 41, Rule 23, 23A - - Before Appellate Court can remand a case for retrial to lower Court - Must come to the conclusion that decision of trial Court liable to be reversed or set aside - Appellate Court cannot reverse the decree as a matter of course whenever it thinks that retrial has become necessary...........
Civil Procedure Code, 1908, Order 41, Rule 23A, Civil Procedure Code, 1908, Order 6, Rule 17 -- Merely because Appellate Court decided to allow amendment of plaint - Cannot remand the case for a retrial...........
Civil Procedure Code, 1908, Order 41, Rule 23A -- Before power of remand can be exercised - Appellate Court should first reverse findings on all issues recorded by trial Court in favour of party in whose favour suit decided - In order to reverse a decree - Finding given by Court on the issues are to be considered and are to be set aside before a decree can be said to have..........
Civil Procedure Code, 1908, Order 41, Rule 33 -- Party who has not filed an appeal - Power of Court of appeal - In exceptional cases the Appellate Court can pass such decree or order as ought to have been passed even if such decree would be in favour of parties who have not filed any appeal - The power though discretionary should not be declined to be exercised merely on..........
Civil Procedure Code, 1908, Order 41, Rule 27(1)(aa), 27(1)(b) -- Additional evidence in Appellate Court - Party seeking must satisfy Appellate Court that evidence was not within his knowledge or could not inspite of due diligence be produced by him in trial Court - Document in possession of party but not produced in trial Court and plea taken is that he did not realise..........
Civil Procedure Code, 1908, Section 115, Order 41, Rule 27(1) -- Additional evidence in Appellate Court - Party negligent in not producing evidence in trial Court - Application rejected - Such order does not amount to 'a case decided' as order does not decide any right of party - Finding of lower Court is finding of fact and no revision lies against such order...........
Civil Procedure Code, 1908, Order 41, Rule 6(2)- -- Auction sale - Stay - Pending disposal of appeal, Executing Court is duty bound to stay sale of immovable property - However, Executing Court can impose conditions - Refusal to grant stay by Appellate Court under O.41.R.5 does not affect power of Executing Court to stay sale during pendency of appeal - Stay granted by..........
Civil Procedure Code, 1908, Order 41, Rule 27 -- Additional evidence in appeal, when cannot be allowed - Plea that evidence of witness essential to prove Expert opinion for proper adjudication of case - Not tenable as it cannot be said that despite due diligence appellant could not examine the witness now sought to be examined by way of additional evidence - Declining of..........
Civil Procedure Code, 1908, Order 41, Rule 27(aa), 27(b) -- Additional evidence in appeal - Bringing on record Will a document relevant for proper adjudication of case - Appellant negligent in not leading evidence at relevant time - Whole controversy revolves around Will which is necessary for proper adjudication of case - Case falls under Order 41 Rule 27(b) and not under..........
Civil Procedure Code, 1908, Order 41, Rule 3 -- Memorandum of appeal - Deficiency in court-fees - Before appellant can be heard on merits of controversy regarding court-fees as determined by trial Court - Appellant must pay court-fees as decided by trial Court on memorandum of appeal...........
