( 1 ) THIS Civil Miscellaneous Appeal is filed under Order XLIII Rule 1 of the code of Civil Procedure (hereinafter in short referred to as "code" for the purpose of convenience) as against an order of remand made in A. S. No. 4/2006 on the file of Senior Civil Judge, Parchur.

( 2 ) THE appellant herein is the plaintiff in O. S. No. 203/2003 on the file of principal Junior Civil Judge, Parchur and the said suit was instituted for recovery of money. The Court of first instance in the light of the respective pleadings of the parties, having settled the issues, recorded the evidence of p. W. 1, D. Ws. 1 to 3, marked Ex. A. 1, Ex. A. 2 and Ex. X. 1 to Ex. X. 7, recorded certain findings and ultimately decreed the suit. Aggrieved by the same, the defendant in the said suit carried the matter by way of appeal A. S. No. 4/2006 on the file of Senior Civil Judge, Parchur, and the appellate Court made an order of remand having observed that proper issues were not framed and having framed a specific issue "whether the alleged settled agreement pleaded by the defendant is true, valid and binding on the plaintiff?" Aggrieved by the said order of remand made by the appellate Court, the learned Senior Civil Judge, Parchur, in a. S. No. 4/2006, the present Civil Miscellaneous Appeal had been preferred.

( 3 ) CONTENTIONS of Sri Adinarayana:- Sri Adinarayana, the learned Counsel representing appellant-plaintiff pointed out that the appellate Court was unable to understand the scope and ambit of Order XLI Rules 23 and 25 of the Code. The counsel also pointed out that though several decisions were cited, the learned judge observed that those decisions were delivered under Order XLI Rule 23 of the Code and hence they are not applicable and this view expressed by the appellate Court is totally erroneous. The learned Counsel also had taken this court through the issues which had been settled by the Court of first instance and the nature of evidence which had been let in by the respective parties and would maintain that even if it is to be taken that issue No. 1 was not properly framed, both parties were conscious of the respective stands taken by the parties and had let in their evidence and in view of the same, no prejudice is caused to the respondent in the present C. M. A.- defendant in the suit. The learned Counsel also pointed out that an order was made in. A. No. 622/2005 in o. S. No. 203/2003 on the file of Principal Junior Civil Judge, Parchur, and the matter was carried by way of C. R. P. No. 5784/2005 and this Court by order dt. 4-1- 2006 dismissed the same observing that the members of the committee in the village were already examined as D. W. 2 and D. W. 3 and in this view of the matter, the filing of the present petition is nothing but to drag on the matter and hence the Court below had rightly dismissed the application.

The Counsel also pointed out that here is a case where an order of remand was made without discussing or properly appreciating the evidence available on record and this approach also is erroneous. The learned Counsel placed reliance on certain decisions.

( 4 ) CONTENTIONS of Sri Subba Rao Korrapati:- Sri Subba Rao Korrapati, the learned Counsel representing respondent-defendant pointed out that in the light of the respective pleadings of the parties, the very first issue which had been settled by the Court of first instance being not correct issue, the appellate court arrived at the correct conclusion by framing proper issue and inasmuch as the appellate Court also felt that some further evidence may be necessary, an order of remand was made. The Counsel also pointed out to the reference made in relation to the settlement before the Lok Adalat held on 7-6-2003. The Counsel also would submit that when the appellate Court felt that it would be just and convenient to make an order of remand in the facts and circumstances of the case though a Civil Miscellaneous Appeal as such is filed since this is to be treated just a

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