The appellate court's power to remand a case under Order 41 Rule 23, Civil Procedure Code, is subject to certain conditions and limitations. The court cannot exercise this power to give an undue advantage to the aggrieved party to fill in the gaps or lacuna in the evidence on record.

( 1 ) THIS appeal by the plaintiff-appellant is directed against the judgment and decree of the Additional District Judge, Krishna, Machilipatnam, dated 1/10/1964, in A. S. No 47 of 1961, ordering the remand of the suit to the Court of the Subordinate Judge, Gudivada, for fresh disposal according to law, in the light of the observations contained therein.

( 2 ) IT is necessary to narrate the brief and material facts that led to this appeal. The appellant, who owns 4. 02 acres of land and a house, married the defendant, in the year 1957, when he was studying B. A class at Gudivada. He was forced and threatened by his father-in-law, in March 1958, when he was unwell and was studying for his ensuing April examination, either to consummate the marriage or to agree to divorce his wife. On 3/03/1958, Venkataramiah and the defendant father came to him and took him to the office of an Advocate Sri D. S. N. Acharyulu of Masulipatnam and got a registered notice prepared with false recitals to the effect that the plaintiff was impotent even at the time of marriage and continued to be impotent after marriage and he was prepared to have the marriage canceled. The plaintiff was compelled to write a document (Ex. B-1) to the dictation of Venkataramaiah and got it registered on 3/03/1958, which is sought to be canceled in O. S. No. 41 of 1958, Sub-court, Gudivada, on the grounds of fraud, coercion, undue influence and fraudulent misrepresentation. The defendant filed written statement contending inter alia that she married the plaintiff on 6/06/1957, her mother had settled Act 2. 2 1\2 cents on her and her father had given a cash gift of Rs. 1000 besides some other customary presents, that the impugned deed was executed voluntarily and out of love and affection and the same is not liable to be canceled.

( 3 ) THE trial court on a consideration of the evidence on record canceled the gift deed (Ext. B-1) as vitiated by fraud, undue influence, coercion and as such invalid and decreed the suit as prayed for. Aggrieved by the judgment and decree of the trial Court, the defendant preferred A. S. No. 47 of 1961 to the District Court, Krishna. Thinking that the entire case revolves on the voluntary nature or other wise of the notice Ext. B-2 and the circumstances under which Ext. A-1 was issued by the doctor and admitted into evidence, the lower appellate Court thought it fit to remand the case to the trial court to afford on opportunity to the parties to examine Sri. D. S. N. Achari, Advocate, Dr. T. V. S. Chalapathi Rao and Narashima Rao. In the result, the decree and judgment of the trial court was set aside and judgment of the trial court was set aside and the suit remanded for disposal according to law. Hence, this appeal by the plaintiffs.

( 4 ) MR. Rama Sarma, the learned counsel, urged that the order remand is unsustainable, as the prerequisites of the Rule 23 of Order 41, Civil P. C. have not been satisfied in this case and this remand has afforded an opportunity to fill the lacunae in the defendants evidence.

( 5 ) MR. Bhujanga Rao, the learned counsel for the respondent, contended inter alia that the impugned order of remand is passed under Section 151, Civil P. C. but not under Order 41. Rule 23, Civil P. C. and hence the present appeal is incompetent and in any event the remand order is just and proper and is liable to be affirmed.

( 6 ) A number of conflicting decisions have been cited by the counsel in support of their respective stands taken by them. It is necessary, firstly. to deal the preliminary objection relating to the maintainability of the appeal raised by the respondent in this appeal. Sri Bhujanga Rao cited the following decisions of the Madras High Court in Mallaya v. Veerayya, AIR 1927 Mad 335; Venkata Radha krishna Rao v. V. Venkata Rao, 47 Mad LJ 552 = (AIR 1925 Mad 229) and Kakamma v. Chandrasekhara, AIR 1929 Mad 205, in support of his plea.

( 7 ) FOR a proper appreciation of the points that arise for det