AIR 1988 RAJASTHAN 26 ::(1987) 2 Raj LR 236 ::(1988) 1 Civ LJ 404 ::(1987) Raj LW 653

Rajasthan High Court

Hon'ble Judge(s): Mohini Kapur , J

Civil P.C. (5 of 1908) , S.107, S.141, S.151, O.41 R.23, O.41 R.23A, O.41 R.25— Appellate court - Powers - Scope - Appeal against miscellaneous application - Court cannot remand the matter under Rr.23, 23-A, 25 of O.41. The appellate court does not have power in miscellaneous proceedings to pass an order of remand under O.41 Rr. 23, 23-A and 25 but can exercise this power only under S.151.(Para 14) Order 41 R.23 is a provision which cannot be made applicable to an appeal against the order on a miscellaneous application in a suit as it is applicable only to a case where a suit has been disposed on a preliminary point and the decision on it is reversed in appeal. @page-Raj27 Similarly, R.25 of O.41 also cannot be made applicable to misc. proceedings as it refers to framing of additional issue.(Para 9) The act of the, court while deciding an application for grant of temporary injunction cannot be said to be covered by the expression, "trial" as is mentioned in R.23-A of O.41. While disposing an application for temporary injunction the court does not determine a question of fact so as to say that the procedure adopted in deciding the same can be called a trial which includes the formal examination of the matter in issue. Trial or re-trial of a matter is something more tha....