An appellate court can only remand a suit to a trial court if it is satisfied that the judgment and decree under appeal are unsustainable on the record available in the case and in law, and that the interests of justice demand a remand.

JUDGMENT :

1. This is an appeal against the order of the Subordinate Judge, Nellore in A.S. No. 1 of 1954 on his file, directing the remand of the suit to the Court of the first instance, viz., the District-Munsif's Court, Kavali apparently purporting to act under Order 41, Rule 23 of the Code of Civil Procedure.

2. The facts relevant to this appeal may be briefly stated as follows. The second plaintiff (2nd respondent herein) brought the suit O.S. No. 113 of 1949 in the District Munsif's Court, Kavali on 5-3-1949 for a declaration that he is the reversioner to the estate of one Purushottam (whose maternal uncle's daughter's son he claimed to be) and for recovery of possession of the suit properties. Before the suit, the second plaintiff purported to alienate his interest in the reversion to the first plaintiff (1st respondent herein) on 31-1-1949. After this, plaintiffs 1 and 2 jointly brought the above suit. Defendants 1 to 3 (appellants herein) claimed as legatees under a will of Ademma, the windrow of Purushottam. Ademma herself is said to have died on 24-4-1947 having executed a will in favour of defendants 1 to 3 bequeathing the suit properties to them. In her own turn, Ademma claimed as a legatee under an oral will of Purushouam the properties in the suit, as belonging absolutely to herself.

3. The learned District Munsif after a careful trial held:

“(1) that the 2nd Plaintiff was not reversioner to the estate of late Purushottam as it was not established that Mahalakshmamma (the mother of Purushottam) was the sister of Venkatakrishnayya (the maternal grand-father of the 2nd plaintiff);

(2) that the oral will of Purushottam has not been proved to be true; but nevertheless Ademma had absolute rights in the suit properties;

(3) that the will executed by Ademma bequeathing the properties in favour of defendants 1 to 3 is true and valid.”

4. Against this judgment and decree of the trial Court, an appeal was preferred by the first plaintiff alone to the District Court, Nellore, in A.S. No. 35 of 1952 which was subsequently transferred to the Sub-Court, Nellore and renumbered as A.S. No. 1 of 1954. Daring the hearing of the appeal, the appellant (in the Court below) wanted to rely on another document, an extract from the Inam Fair Register to show that the 2nd plaintiff was in fact the reversioner of late Purushottam. In order that the same may be received as an additional evidence, I.A. 47/1958 was filed by him under Order 41, Rule 27 of the Code of Civil Procedure. The learned Subordinate Judge in dealing with this application, having considered that the document in question should be received instead of following the procedure provided for under Order 41, Rule 27 of the Code of Civil Procedure, ordered the remand of the suit to the court of the first instance. The grounds given by him in support of the remanded ordered are:

“1. that the extract of the Inam Fair Register now sought to be produced by the appellant (in the Court below) should be received in evidence and an opportunity be given to the respondents to disprove the contention of the first plaintiff based on the said document and that such an important document should be admitted in evidence;

2. that Sri T.V. Sivaramayya, the learned advocate for the appellant wanted the suit to be remanded giving an opportunity to both the parties to produce further evidence in the lower Court.

3. that the learned District Munsif gave no finding that the will executed by Ademma in favour of defendants 1 to 3 was properly executed or attested.

4. that the learned District Munsif had not carefully considered Exs. A-24, A-25 and A-27 and the weight to be attached to the admissions made therein.

5. Before I advert to the grounds on which the learned Subordinate Judge decided to remand the case, it is necessary to examine whether the order of remand was proper and correct and in accordance with Order 41, Rule 23 of the Code of Civil Procedure. Order 41, Rule 23 Civil Procedure code is as fol