JUDGMENT
M.M. Kumar, J.
1. This petition filed under Article 227 of the Constitution prays for quashing order dated 14.2.2005 passed by learned Additional District Judge, Ludhiana who had sent back the case to the trial Court to record the statement of one Pritam Singh, Namberdar, a marginal witness on the registered Will set up by the plaintiff-respondent. The trial Court has been directed to issue bailable warrants once again to Pritam Singh for recording his statement and after doing needful to return the file to the Additional District Judge, Ludhiana on or before 20 4.2005.
2. Brief facts of the case are that plaintiff-respondent No. 1 to 3 filed a civil suit for joint possession of the suit land which was dismissed by a judgment and decree dated 29.10.2002 by holding that the plaintiff-respondents No. 1 to 3 failed to prove due execution of Will. The suit was based on a registered Will dated 13.4.1983 executed by one Sardara Singh deceased in favour of plaintiff-respondents No. 1 and 2. It was further prayed that mutation of inheritance entered in favour of Gurdial Singh (now represented by his legal representatives defendant-respondents No. 6 to 11) be also set aside. Against judgment and decree dated 29.10.2002, the plaintiff-respondents preferred an appeal before the learned District Judge, Ludhiana. During the pendency of the appeal, an application under Order 41 Rule 27 C.P.C. was filed by plaintiff-respondents No. 1 to 3 which was allowed vide order dated 5.11.2004. Accordingly, plaintiff-respondents No. 1 to 3 were permitted to adduce additional evidence in the shape of legal heirs of Sampuran Singh and also to produce marginal witness of the Will. The Court also permitted the defendant-petitioner to lead rebuttal evidence to the evidence that was to be adduced by the plaintiff-respondents No. 1 to 3. The case was remanded back to the trial Court on 17.11.2004 with a direction to send its report on 22.12.2004 (Annexure P-1).In compliance of the order, the learned trial Court issued summon and bailable warrants to produce Pritam Singh Namberdar and it was to proceed to record his statement. However, the time limit fixed by remand order had approached and it had close the evidence of the plaintiff-respondents by order without recording the statement of Pritam Singh. It would be pertinent to make a reference to the order dated 15.12.2004 passed by the trial Court and the same reads as under:
“Present: Counsel for the parties.
File taken up today as I was on leave on 14.12.2004. Again no PW is present. The bailable warrants of Pritam Singh received back with the report that he had gone to meet his some relatives. Despite of the fact that the evidence was to be returned to the Appellate Court, the service of the witness could not be get effected by the plaintiff. Hence, the additional evidence of the plaintiff closed by order. Now to come up on 18.12.2004 for evidence of defendant.”
3. Accordingly, the file was sent back to the learned Additional District Judge, when the report alongwith the above-mentioned order reached the Court of learned Additional District Judge, an application was filed for extension of time and for recording of additional evidence. The impugned order has been passed by allowing afore-mentioned application. The operative part of the impugned order reads as under: –
“Admittedly the bailable warrants of Pritam Singh were received back with the report that he had gone to meet some relatives. Therefore, the learned trial Court should have compelled the presence of Pritam Singh by adopting coercive method or by sending the bailable warrants against him or the learned trial Court should have sought the extension of time from this Court if the conclusion of the additional evidence of the appellant was not possible before 22.12.2004 i.e. the deadline by this Court…. I am of the opinion that the impugned order passed by the learned trial Court is improper. Hence, the file be sent back to the learned trial Court to record the evidence of Pritam Sigh, marginal witness Namberdar by sending his bailable warrant again with the direction to return this file after doing the needful to this Court on or before 20.4.2005. With these observations the application is accepted and disposed of accordingly. The parties, through their counsel are directed to appear before the learned trial Court on 28.2.2005 at 10.00 a.m. sharp. The lower court file be returned to the court concerned forthwith.”
4. Mr. P.K. Gupta, learned counsel for the defendant-petitioner has argued that there was no power with the learned Additional District Judge to set aside the order dated 15.12.2004 closing the evidence because there is no provision under Order 43 Rule 1 C.P.C. making such orders as appealable before the learned Additional District Judge. According to the learned counsel in the absence of any such provision, the exercise of appellate jurisdiction by the learned Additional District Judge is patently illegal and would result into manifest injustice to the defendant-petitioner. Learned counsel has maintained that such an order could be subject matter of challenge only before this Court under Section 115 of the Code of Civil Procedure, 1908 or under Article 227 of the Constitution.
5. After hearing the learned counsel and perusing the record, I am of the considered view that there is no merit in this petition warranting exercise of jurisdiction under Article 227 of the Constitution. A perusal of the impugned order makes it evident that learned Additional District Judge had remanded the case vide order dated 5.11.2004 with specific direction to adduce additional evidence by producing the legal heirs of Sampuran Singh and also marginal witness of the will. It was further directed that the defendant-petitioner would also be entitled to adduce rebuttal evidence to the evidence of the plaintiff-respondents. On account of time limit imposed by the learned Additional District Judge, the report was required to be sent by the trial Court on or before 22.12.2004. The factual position is from para 6 of the impugned order to which reference has been made in the preceding para. The necessary consequence was that the trial Court abandoned Pritam Singh, Namberdar, who was a marginal witness on the Will despite the fact that bailable warrants had come back unexecuted with the report that he had gone to meet his relations. Once the trial court on the direction issued by Additional District Judge had adopted such a course then it could not have left it half way. It was required to compel the appearance of Pritam Singh, Namberdar. The afore-mentioned reasoning has been followed by the learned Additional District Judge which to my mind does not suffer from any legal infirmity warranting interference of this court. Moreover, the Additional District Judge is only ensuring the compliance of his remand order dated 5.11.2004 whereby he had directed recording of statement of Pritam Singh, Namberdar who is a marginal witness on the registered Will. Moreover, the remand order passed by the learned Additional District Judge on 5.11.2004 accepting prayer of the defendant-petitioner has attained finality as the same was never challenged in appeal. For the aforementioned proposition reliance could be placed on the observations made by Supreme Court in the case of Om Parkash v. Amarjit Singh and Anr., 1980 (Suppl.) S.C.C. 780, which reads as under: –
“Appellant’s entitlement to adduce fresh evidence and to have plaintiffs witnesses recalled for cross-examination turns upon and is circumscribed by the order of remand. The order of remand dated February 14, 1986, not having been appealed against by either side had assumed finality. As observed by this Court in Nainsingh v. Koonwarjee an order, which is appealable under Order 43, C.P.C., if not appealed against, becomes final and its correctness is no more open to examination in view of the provisions of Section 105(2) of the Code which provides that where any party, aggrieved by an order of remand from which an appeal lies, does not appeal therefrom, he shall thereafter be precluded from disputing its correctness. It is true that the correctness of the view taken by the District Judge in the course of the remand order that the date of the signing of the application and not the date of its initial filing was the relevant date for purpose of reckoning limitation is open to doubt in the light of the directions of the High Court permitting appellant to sign the application. But that order of remand, as stated earlier, was not appealed against by the appellant. The trial Court was right in its view that its jurisdiction on remand was circumscribed and fettered by the terms of the order of remand.”
6. The argument that order dated 15.12.2004 closing evidence of the plaintiff-respondent by the trial Court had attained finality and that it was not appealable, does not commend itself to me. It is true that under Order 43 Rule 1 C.P.C., such an order has not been made appealable yet a perusal of Section 105 read with Order 43 Rule 1-A C.P.C. would make it evident that interlocutory order which has been made non-appealable could be challenged in an appeal against a judgment and decree filed under Section 96 alongwith the judgment and decree. Section 105 and Order 43 Rule 1-A C.P.C. makes the afore-mentioned position amply clear and the same read as under:
“Section 105:
(1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction, but, whereas decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.
(2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand from which an appeal lies does not appeal thereof, he shall thereafter be precluded from disputing its correctness.” ORDER 43:
“1-A: Right to challenge non-appealable orders in appeal against decrees.-(1) where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been pronounced.
(2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.
7. A perusal of the aforementioned provision would show that any order made under the Code against a party and thereupon any judgment is pronounced against such a party by drawing a decree then such party in an appeal against decree has been granted a right to challenge such an order. The order dated 15.12.2004, may not strictly speaking be an order preceding the passing of decree but the nature of that order would be recovered by the sweep of Section 105 and Order 43 Rule 1-A C.P.C. Therefore, it cannot be concluded that order dated 15.12.2004 is not appealable order or that it was only a revisable order Under Section 115 of the Code or Article 227 of the Constitution. In any case, it may be deemed that this Court has exercised supervisory jurisdiction under Article 227 of the Constitution in setting aside order dated 15.12.2004 because the evidence of the marginal witness would have significant bearing on the question of execution of Will. Hence, I have no hesitation to reject the contention raised by the learned counsel.
8. For the reasons stated above, this petition fails and the same is dismissed.