This is a miscellaneous second appeal preferred by the defendant against the judgment and decree of the First Appellate Court which has set aside the judgment and decree of the Trial Court without going into the merits, but only on the ground that the application filed under Order 41, Rule 27 requires to be considered and then remanded the matter to the Trial Court for fresh consideration in accordance with law.

2. I have heard the learned Counsel for the parties. The questions that arise for consideration in this appeal are.-

(1) Whether the appeal preferred by the appellant is maintainable?

(2) Whether the Appellate Court was justified in setting aside the judgment and decree of the Trial Court solely on the ground that the application filed under Order 41, Rule 27 of the Civil Procedure Code, 1908 is allowed?

(3) Whether the Appellate Court was justified in remanding the matter and ordering for re-trial?

3. The plaintiff filed a suit for the relief of declaration of title and for permanent injunction against the defendant. Suit was contested. Ultimately, the suit came to be decreed partly declaring that' the plaintiff is the owner of three items of the property. In respect of the said extent of land a decree for permanent injunction was granted.

Aggrieved by the said judgment and decree, the plaintiff preferred a regular appeal. In the regular appeal he filed an application under Order 41, Rule 27 of the CPC for production of additional evidence and produced 28 documents. Objections were filed for production of the said documents by the respondent. The First Appellate Court heard the appeal on merits and also the application filed under Order 41, Rule 27 of the CPC. After setting out the facts of the case, issues involved and the points for consideration, it declined to go into the merits of the judgment and decree of the Trial Court. On the contrary it held that the application filed by the plaintiff under Order 41, Rule 27 of the CPC requires to be allowed. Because of that finding it set aside the entire judgment and decree of the Trial Court and remanded the matter to the Trial Court for fresh consideration in accordance with law in the light of the 28 documents produced by the plaintiff Aggrieved by this order of remand, the defendant is in second appeal.

4. Learned Counsel for the appellant contends, in the first, place that, merely because the First Appellate Court came to the conclusion that the application filed under Order 41, Rule 27 of the CPC requires to be allowed, that cannot be made the basis for setting aside the judgment and decree of the Trial Court and remand the case. Secondly, he contends that, the said application could not have been heard as an interlocutory application. It ought to be heard along with the merits of the appeal and then only the application could have been allowed.

5. Per contra, the learned Counsel for the respondent submits that, against an order passed under Order 41, Rule 27 of the CPC no appeal lies and, therefore, this second appeal is not maintainable. Secondly, he contends that, there is no necessity for the First Appellate Court to go into the merits of the case when it comes to the conclusion that the application under Order 41, Rule 27 of the CPC requires to be allowed. Therefore, he submits the impugned order of remand is just and proper and does not call for any interference.

6. Point No. (l).-The appeal is preferred against the judgment and decree of the lower Appellate Court dated 22-6-2006 passed in R.A. No. 16 of 2004. This appeal is under Order 43, Rule l(u) of the CPC. It is true that the lower Appellate Court allowed the application filed by the appellant under Order 41, Rule 27 of the CPC for production of 28 documents as additional evidence. Consequently, it set aside the judgment and decree of the Trial Court and remanded the matter to the Trial Court for fresh disposal in accordance with law. Under these circumstances, it is not an - appeal against an order passe